About 40 investigations are underway into alleged war crimes by Australian forces in Afghanistan over an 11-year period, a Federal Court judgement related to the failed Ben Roberts-Smith defamation case has revealed.
Key points:
- Ben Roberts-Smith’s civil proceedings against Nine Entertainment were dismissed earlier this year
- The AFP and the Office of the Special Investigator want access to sensitive parts of the court file
- A court was told an investigation into alleged criminal offences in Afghanistan between 2005 and 2016 is underway
The war veteran’s civil proceedings against Nine Entertainment were dismissed earlier this year, after Justice Anthony Besanko ruled there was substantial truth to allegations of war crimes and bullying.
Parts of the trial were heard in closed court and many former and current SAS soldiers gave evidence under pseudonyms.
The Australian Federal Police (AFP) and the Office of the Special Investigator (OSI) now want access to sensitive parts of the court file.
However, Mr Roberts-Smith’s lawyers argued Justice Besanko should disqualify himself from making that decision due to apprehended bias.
A written judgement on that question, published today, refers to material from OSI Director of Investigations, Ross Barnett.
He told the court the AFP and OSI are looking into alleged criminal offences under Australian law, arising from or related to breaches of the Law of Armed Conflict, by members of the ADF in Afghanistan between 2005 and 2016.
The investigations are known as Operation Emerald, which according to Mr Barnett “currently consists of approximately 40 investigations, and that although all of these investigations are active, the level of investigative focus varies across the investigations from time to time”.
“Mr Barnett deposes that his ability to disclose the details of the investigations in an open and unclassified affidavit is limited,” the judgement said.
“But that he is able to say that there is an overlap between the subject matter of the investigations and the subject matter of the defamation proceedings”.
“Criminal offences of the kind being investigated are extremely grave and their thorough investigation is of national and international importance.”
The Commonwealth wants access to information including a list of witness pseudonyms in the defamation trial, closed court transcripts, sensitive outlines of evidence and documents tendered in closed court.
Mr Roberts-Smith’s lawyers’ suggestion of apprehended bias — as opposed to actual bias — related to Justice Besanko’s findings in the defamation case.
The judge today said he had made “a number of serious findings of fact and credit” against Mr Roberts-Smith.
The veteran’s lawyers argued a “reasonable observer” may perceive a connection between the court’s findings and the court being called upon to take steps which “undermine” the presumption of innocence.
Noting the circumstances were “unusual”, Justice Besanko concluded that a fair-minded lay observer might reasonably apprehend that he “might not bring an impartial mind” to the Commonwealth’s requests.
The applications will be referred to another judge.
Mr Roberts-Smith is launching an appeal after his loss in the defamation case, which is expected to take place in February.