Karen Espiner: Ben Roberts-Smith’s lawyer makes play to unmask hostile witnesses

The latest battleground in the prosecution of Victoria Cross awardee Ben Roberts-Smith is over whether the identities of 42 potential witnesses should be kept secret.

In the New South Wales Local Court on Tuesday, Mr Roberts-Smith’s Perth-based lawyer, Karen Espiner, said she planned to challenge the prosecutors’ request for an order prohibiting publication of the witnesses’ names.

Ms Espiner has not filed the paperwork setting out the scope of her objections. But if successful she could expose for the first time some of the key figures in one of the most controversial criminal prosecutions in Australian history, including former Special Air Service soldiers who turned against Mr Roberts-Smith after fighting the Taliban alongside him in Afghanistan.

At Tuesday’s hearing, Judge Susan Horan was told by Ms Espiner in a court room at the Downing Centre complex in Sydney that a two-hour hearing reserved to decide on the non-publication requests would not be long enough and “two-plus days” would be needed.

Both the prosecutors and the defence lawyers have hired independent experts to give evidence about why keeping the witnesses’ identities secret is necessary or not necessary. Both sides intend to cross-examine the other’s expert to identify flaws in their arguments.

The prosecution barrister, Sean Flood, SC, foreshadowed the argument for keeping the witnesses’ identities secret when he cited the “potential traumatic effects on them” of being named.

Open justice

There has been speculation among a group of military veterans who support Mr Roberts-Smith about who is likely to give evidence for the prosecution. Some people have alluded to their names in social media posts, which media outlets are prohibited from doing under an interim ruling in the Local Court and a separate decision by the Federal Court that dates back to 2018.

Liberal MP Andrew Hastie, a former SAS officer and antagonist of Mr Roberts-Smith’s, has said that he is not on the confidential witness list, although continues to receive online abuse for testifying against the former corporal in a defamation lawsuit.

Mr Roberts-Smith’s lawyers are likely to argue that concealing the identity of 42 potential witnesses is an extreme step that will undermine the principle of open justice.

The argument is likely to prolong a case that has no trial date in the foreseeable future. The five charges of committing or abetting the war crime of murder against Mr Roberts-Smith remain stuck in the lowest level of the NSW court system, which is so clogged up that Judge Horan said it would take a year to schedule a two-day hearing to consider the non-publication orders.

Their other option, Judge Horan said, was to ask the court’s administrators for two days that have become available sooner because other hearings had been cancelled. That would mean the hearing would probably not be held on consecutive days, disrupting questioning.

“It is not going to be straightforward,” she said. “They will be months apart.”

Several hours later the court allocated three days over a week-and-a-half next August to consider the matter.

Timeline slipping

Complicating the process is the prospect of potential witnesses hiring their own lawyers and demanding to be heard when the judge considers the non-publication order request. At this stage, only one of the 42 has done so.

Mr Flood, the prosecution barrister, said some potential witnesses may not want to be represented by the Director of Public Prosecutions’ lawyers if Mr Roberts-Smith challenges their right to anonymity.

That prospect led him to suggest that two days might not be enough time to consider the application, a suggestion rejected as premature by Judge Horan.

“At the moment we have one,” she said. “There may be one. There may be more than one.”

Adding to a sense that the prosecution’s original timeline is slipping, Ms Espiner told the judge she has not received the classified evidence against Mr Roberts-Smith, known in court terminology as the sensitive brief of evidence. The documents are necessary to begin preparing his legal defence.

After Mr Roberts-Smith was arrested on April 7 in front of his family at Sydney Airport, a prosecution lawyer told a judge the evidence against him “would be substantially served by July” — an assertion unsuccessfully used to argue against granting Mr Roberts-Smith bail.

The evidence has taken so long to be collated that on Tuesday a barrister for the Director of Public Prosecutions, Edward McGuinness, was required to ask for an extension to December 8. It was granted.

Other practical problems conducting the second civilian war crimes prosecution in Australian history emerged on Tuesday.

Ms Espiner and her team have not been provided with the government safes and secure electronic devices needed to store and read classified documents, she said. All lawyers involved have to be vetted by the government to ensure they do not pose a national security threat.

No reply

A senior court official in Sydney has not responded to two letters from Federal Government lawyers asking about inspecting a safe located in the registry office, a barrister representing the Government, Gráinne Marsden, told the court.

The safe, which could be used to store sensitive documents, has to be moved because the registry office is going to be renovated, Ms Marsden said. Judge Horan said she was “surprised you didn’t get a response” and offered to raise the request directly with the court official.

Mr Roberts-Smith has proclaimed his innocence but has not been required to enter a plea. After he does, the case will move to the NSW Supreme Court for a trial or sentencing.

Four former SAS soldiers have been granted immunity from prosecution for committing murder in return for agreeing to testify that Mr Roberts-Smith executed prisoners or ordered others to execute prisoners, according to court documents. Their identities have been suppressed.

The first trial for war crimes under a law introduced to fulfil Australia’s membership of the International Criminal Court is scheduled to begin next February. Former SAS trooper Oliver Schulz has pleaded not guilty to one count of murder.

On Monday Mr Roberts-Smith spoke at a function to open eight homes donated by businesswoman Gina Rinehart to military veterans in the Brisbane suburb of Norman Park. Named after Victoria Cross awardee Daniel Keighran, who also attended, the town houses are the first supplied in Queensland under a $200 million promise by the executive chairman of Hancock prospecting to house homeless veterans.

“You may wonder, what am I doing purchasing buildings for veterans?” Ms Rinehart said. “I’m doing this because the government might attend medal ceremonies and other photograph opportunities, but won’t open the doors of the unused or scarcely used barracks or other defence accommodation facilities to let our veterans in out of the cold. To let our veterans have a safer place to live, a place they can use and call home.”