The army is fighting a request from Ben Roberts-Smith’s lawyers to reveal what 12 Special Forces members told a top-secret inquiry into alleged war crimes in Afghanistan.
The Federal Court has been told the Victoria Cross recipient has asked for transcripts – if they exist – of “key witnesses” who were on the same missions during which newspaper articles allege he committed, or was complicit in, six murders.
Arthur Moses SC, acting for Mr Roberts-Smith, said the confidential accounts witnesses were suspected of giving to the Brereton Inquiry were crucial to the credibility of the evidence they were expected to give in a defamation trial before the court.
Australian Defence Force Inspector-General James Gaynor has claimed public interest immunity over the interviews, saying their release could negate attempts to break a “culture of silence” within Special Forces ranks and impact on the ability to hold similar inquiries in the future.
Kristine Stern SC, appearing for General Gaynor and the ADF, would not confirm or deny in open court whether the soldiers did testify in the inquiry or whether the transcripts sought existed at all.
Australia’s most decorated living soldier, Mr Roberts-Smith is suing former Fairfax newspapers and journalists over reports he committed atrocities while deployed in the Middle East and allegations of violence against women.
His lawyers have issued a subpoena seeking documents related to current and former members of the Special Forces who they suspect gave evidence in the landmark inquiry.
They are looking for evidence linked to “certain identified events” that are the subject of the trial and for which the newspapers have filed a defence of truth, the court was told on Wednesday.
The court was told those events, between 2006 and 2012, centred on allegations of Mr Roberts-Smith shooting unarmed civilians and directing other soldiers to kill innocent Afghans.
All of the 12 witnesses identified, including Federal MP Andrew Hastie, are expected to be called by the publications during the defamation trial, Mr Moses told the court.
Some of the published allegations “don’t come from the investigative skills of the journalists”, Mr Moses claimed, but were sourced from “other mechanisms” and what they believed was contained in the Brereton report.
It would be critical for the court to know if the witnesses had given any prior inconsistent accounts of what happened on the missions in question and the incidents that Mr Roberts-Smith denied, he said.
“This is a credit case in the field of battle of events dating back as far as 2006,” Mr Moses said.
Ms Stern said granting the subpoena would savage the trust and confidence in the Defence Force, which has worked to shed a “code of silence” adopted by members of the Special Forces.
“Because this claim relates to transcripts of evidence in relation to precisely the cohort of persons where the code of silence was identified as a significant problem,” she said.
“Efforts to break down the culture of silence … would be undermined.”
That toxic culture not only made it difficult to find the truth but was also considered to be a “contributing factor” to the conduct being investigated by the inquiry, Ms Stern said.
She said it would be inappropriate to disclose the evidence, as the IGADF “took very careful and elaborate steps to maintain the confidentiality of the inquiry”.
However, Mr Moses said they could not be given an “absolute guarantee” that another affected party wouldn’t seek the information via subpoena.
Nor could they be seen as whistleblowers, he said, because it was unknown whether the people identified had been compelled to give evidence before the inquiry.
The hearing before Justice Wendy Abraham is set to continue in a closed court.