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NSW lockdowns push Roberts-Smith trial back to November

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Ben Roberts-Smith’s high-profile defamation trial in locked-down Sydney will resume against three newspapers on November 1.

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On Monday Justice Anthony Besanko said while current stay-at-home orders due to COVID-19 were in place until the end of August there was a reasonable chance they could be extended.

“There is also the need for certainty or as much certainty as possible as to the date of the resumption of the trial,” he said in the Federal Court.

The media organisations propose to call up to 24 witnesses with 19 of them interstate, while Mr Roberts-Smith’s defence has indicated it could call 19 witnesses to “reply to the defence of justification,” he said.

The 42-year-old is suing The Age, The Sydney Morning Herald and The Canberra Times over articles from 2018 that he says depict him as a criminal who broke the moral and legal rules of military engagement during his deployments in Afghanistan with the SAS.

The former special operator denies all accusations against him while the newspapers are defending them at the trial on the basis of truth.

The trial was adjourned in June for four weeks due to difficulties with witnesses attending Sydney during lockdown but resumed temporarily last week to hear evidence from three Afghan men.

Their evidence centres around a controversial SAS mission during which local man Ali Jan was killed in the village of Darwan, Uruzgan province in September 2012.

Two of the Afghan witnesses told the trial that they saw a big soldier kick the villager down into a river bed.

All three witnesses testified that Ali Jan was unconnected to the Taliban, while Mr Roberts-Smith says he was a Taliban spotter.

Roberts-Smith’s legal team had asked the court to order Australian witnesses served with a subpoena before September 24 to officially apply if they wished to be excused due to hardship.

But Justice Besanko said he would not make a ruling in such unpredictable circumstances and set down a case management hearing in October to deal with any issues that arise.

In addition to the Afghan witnesses, the trial has so far heard evidence from Mr Roberts-Smith and former Liberal politician Brendan Nelson.

It is yet to hear testimonial evidence from 21 current and former SAS members including federal MP Andrew Hastie, and the Victoria Cross holder’s ex-wife Emma Roberts.

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