Roberts-Smith trial could shift to WA

Ben Roberts-Smith's high-profile defamation trial could be shifted to Western Australia to make it easier to hear evidence from key witnesses based in that state, a court has been told.

The war hero's lawsuit against The Age, The Sydney Morning Herald and The Canberra Times over alleged war crimes in Afghanistan was halted in August last year due to COVID-19 complications and was scheduled to resume on February 2.

On Friday, the media outlets' barrister Lyndelle Barnett told the Federal Court that, due to changes to border rules in WA announced overnight, the respondents faced new problems given four of six witnesses were based on the west coast.

Ms Barnett said her side did not want to vacate the February 2 resumption date, and that a possible solution would be to move the trial to WA to hear testimony from witnesses residing there.

"That's something we'd like to explore with the Commonwealth and the applicant," Ms Barnett told the court.

Arthur Moses SC, for Mr Roberts-Smith, said the court had previously heard it would likely take about three months for proceedings to be moved to another jurisdiction.

"That ship has passed I think," Mr Moses said.

He told the court there were no restrictions on the witnesses leaving WA, but that they would have to quarantine for 14 days and take PCR tests on re-entering the state.

"Everybody should still prepare on the basis that we are resuming on the second of February, we always expected that something like this may happen," he said.

The court heard that the first witness to be called on resumption would be "Person 66" and that anticipated evidence from that person, contained in an outline, would be that he "in effect murdered an individual during a mission" in 2012.

"There are no details concerning this issue," Mr Moses said of the outline.

Mr Roberts-Smith is suing the news outlets over articles from 2018 that he says paint him as a criminal who breached the moral and legal rules of military engagement during his deployments in Afghanistan with the SAS.

He is also suing over claims he assaulted a woman in Canberra.

The former SAS corporal denies all allegations against him while the newspapers are running a truth defence.

The trial has so far heard evidence from Mr Roberts-Smith, former Liberal politician Brendan Nelson and several Afghan villagers.

It is awaiting testimony from current and ex-SAS soldiers, federal MP Andrew Hastie, and the applicant's ex-wife Emma Roberts.

Justice Anthony Besanko adjourned the matter to Tuesday for further case management.

Also on Friday, another Federal Court judge ruled against Mr Roberts-Smith's lawyers being able to question his former wife Emma Roberts over confidential emails he accused her of passing on to the newspapers in the defamation case.

Justice Robert Bromwich said Mr Roberts-Smith failed to prove a "sufficient basis" to examine Ms Roberts over her delivery to the court of any information obtained from his RS Group email account.

Justice Bromwich awarded costs to Ms Roberts and also ruled there were also insufficient grounds to join Ms Roberts' close friend Danielle Scott, and her husband, to the action.

Mr Moses previously told the court that an email account used by Ms Scott or her husband accessed the war hero's password-protected account at least 101 times between January 20, 2020 and May 7, 2021.