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War crime investigators will not see evidence from Ben Roberts-Smith’s defamation trial that could lead to the contamination of their probe, a judge has been told.
On Wednesday, the Federal Court let the Office of the Special Investigator (OSI) view a wide range of transcripts and evidence from the lengthy and hotly contested defamation proceedings.

However, the OSI, which is examining potential war crimes in Afghanistan, will not be allowed to see certain material from the case, including from when Roberts-Smith and others were compelled to give evidence.

Ben Roberts-Smith outside Federal Court in Sydney
Ben Roberts-Smith’s bid to limit defamation evidence viewed by war crime investigators will prevent the contamination of their probe, a court has heard. (Nick Moir)

Representing the war veteran, barrister Arthur Moses SC said the sensitive material would have been unlawfully obtained by the OSI and could have potentially “contaminated” any criminal probe.

“Had they had access to what they wanted to access, there could have been the corruption of yet another investigation,” he told Justice Robert Bromwich.

After the decision, the Commonwealth sought all sensitive court documents used in the trial but later reversed course and limited its request after being grilled by Bromwich at a hearing earlier this month.

At that time, the court heard the OSI and Australian Federal Police were jointly investigating 33 alleged offences by defence force members in Afghanistan between 2005 and 2016.

The OSI was established after an inquiry by the Inspector-General of the Australian Defence Force into soldiers’ conduct in Afghanistan.

Redactions will now be made of closed-court transcripts, outlines of evidence, material on a secure laptop and certificates issued by the court protecting individuals who gave evidence against self-incrimination.

These redactions will be made by lawyers at the Australian Government Solicitor and then reviewed by a separate team of special counsel before being passed onto the OSI.

The Commonwealth has been ordered to pay Roberts-Smith’s legal costs regarding access to the material after the ex-soldier raised concerns about the potentially contaminating documents in June.

Moses argued the federal government had “capitulated” to his client’s concerns, ultimately limiting the material it could gain access to.

After Besanko dismissed the defamation case in June, the newspapers sought court orders that Roberts-Smith and his financial backers at Seven and billionaire Kerry Stokes’ private company Australian Capital Equity pay their legal costs.

In that dispute, Seven, ACE and Roberts-Smith have appealed a decision ordering them to produce tens of thousands of documents to the publications, which hope to prove that the ex-soldier’s supporters were heavily involved in the defamation trial.

If you are a current or former ADF member, or a relative, and need counselling or support, you can contact the Defence All-Hours Support Line on 1800 628 036 or Open Arms on 1800 011 046.

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