The Australian federal police wrote to the decorated special forces veteran Ben Roberts-Smith to tell him it hadinformation, including eyewitness accounts, implicating him in alleged war crimes, a court has heard.
Roberts-Smith is for defamation over a series of reports suggesting he committed war crimes in Afghanistan between 2009 and 2012.
One of the allegations made by the newspapers was that Roberts-Smith kicked a bound Afghan villager named Ali Jan off the edge of a small cliff into a dry creek bed during an SAS-led mission to the village of Darwan in September 2012.
Ali Jan was then allegedly shot.
Those reports were vehemently denied and labelled defamatory by Roberts-Smith, a recipient of the Victoria Cross, Australia’s highest military honour, because they portrayed him as someone who “broke the moral and legal rules of military engagement”. He has previously rejected the allegations of misconduct as malicious and deeply troubling.
As Roberts-Smith’s defamation case proceeds through the federal court, a separate, long-running, independent inquiry into alleged war crimes is being conducted by the inspector general of the Australian Defence Force through the former major general and judge Paul Brereton.
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An AFP investigation into the allegations was also commenced in mid-2018, following a referral from the then chief of defence force Mark Binskin.
The court heard on Tuesday that police were treating Roberts-Smith as a suspect.
Sandy Dawson SC, acting for the newspapers, told the court that the AFP had written to Roberts-Smith’s lawyer in December inviting him to give an interview, saying it had eyewitness accounts that conflicted with his account of the Darwan village operation.
“On page two of the letter, Mr Roberts-Smith is told through his lawyer that the AFP has obtained contemporaneous ADF reporting and associated documentation in relation to this ADF [Special Operations Task Group] operation,” Dawson said. “The AFP has conducted inquiries in Afghanistan and obtained statements from a number of current and former ADF personnel.
“He is also told, your honour, that the basis for the AFP’s conclusion as to suspicion of Mr Roberts-Smith’s involvement is predicated on the fact that Mr Roberts-Smith has contended … that Ali Jan was a spotter and was therefore legitimately killed, whereas the information in the possession of the AFP, which includes eyewitness accounts to the contrary, implicates Mr Roberts-Smith in the conduct which is alleged, namely the two war crimes I have referred to.”
Details of that letter have not been revealed publicly until now.
The court heard Roberts-Smith has participated in an interview with the AFP.
The AFP was preparing to release about 320 documents to Dawson and his legal team as part of the defamation case, the court heard.
The hearing on Tuesday was held because the IGADF is by lawyers for the Sydney Morning Herald and the Age to gain access to documents it holds.
The newspapers are seeking IGADF documents to help bolster their defence of truth, including any IGADF notice issued to Roberts-Smith that he is a person potentially affected by its inquiry.
But the IGADF, represented by Anna Mitchelmore SC, has made a claim of public interest immunity over the documents, arguing their disclosure will do real harm.
Mitchelmore said the inquiry has so far been conducted completely in private and is governed by a comprehensive range of suppression orders.
She said the results of the inquiry may never be released publicly by the assistant IGADF.
“When it was initially directed, the inquiry was mandated to be a … private inquiry and since that time the assistant IGADF has continued to conduct it as a private inquiry,” she said.
“The results of the inquiry may never be known to the public or may not be known to the public for some time, either in whole or in part.”
But Dawson said that submission was a “distraction” and that the court should not assume the report will not be released.
He said the process dictated that the Brereton report would be provided by the IGADF to the defence force chief Angus Campbell. Campbell would then, in consultation with government, decide whether the report was released.
“It’s more likely, we would respectfully submit, that major general Brereton has decided to leave the question of whether there should be public release of the report or any of it to the inspector general or to the chief of the defence force,” he said.
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Dawson noted that the defence minister was already on record as saying part of the report would be released.
“We haven’t burdened your honour with this evidence but the minister is on record saying that the minister intends to release at least part of the report, given the extraordinary public interest in its subject matter,” he said.
“Now your honour doesn’t have any evidence from the inspector general or from the chief of the defence force as to their intentions, let alone from the minister as to the minister’s intention about releasing the report.”
“Your honour is only told that major general Brereton does not intend to make that decision, which it might be thought is a perfectly appropriate position for him to take given the extraordinary public interest in the matters being investigated.”
Dawson said it was wrong to equate any release of the IGADF documents to the newspapers’ legal team with a release to the broader public.
He said the defence was constrained by strict requirements on how it could deal with such material, which would prevent sensitive information being made public.
“That is an erroneous way to approach the question, we would respectfully say,” Dawson said.
The court heard the IGADF inquiry is in “a very real sense an ongoing inquiry”. It was expected the inquiry might conclude within months, but that was not a certainty.
Not everyone who is to be issued with a “potentially affected person” notice, or is likely to be issued with one, has been given such a notice, the court heard.
The report would be provided to the chief of the defence force, who is able to make a decision on whether to release the report publicly in consultation with the IGADF, the court heard.
Justice Craig Colvin has reserved his decision on the public interest immunity claim and will hand down judgment at a later date.