Barrister Jack Tracey,acting for Person 66,told the court that there were reasonable grounds for the objection because the evidence the witness was anticipated to give “would have the tendency to incriminate” him in the commission of an alleged offence. Asked about the nature of the offence,Mr Tracey said it “would be an offence of murder,your Honour”.
The identity of Person 66,who was deployed to Afghanistan with the SAS in 2012 with Mr Roberts-Smith,cannot be revealed for national security reasons.
Justice Anthony Besanko told Person 66 there were reasonable grounds for his objection,and said the court had the ability to grant him a certificate under section 128 of the Evidence Act “which means that,if you give the evidence,the evidence cannot be used against you in any proceeding in an Australian court”.
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But Person 66 said he was still unwilling to give the evidence. The former SAS soldier was subpoenaed by The Age,The Sydney Morning Herald and The Canberra Times to give evidence in Mr Roberts-Smith’s defamation case against the mastheads,which are seeking to rely on a defence of truth.
Nicholas Owens,SC,acting for the newspapers,confirmed he was seeking to have the court compel Person 66 to give the evidence,in spite of his objection. Justice Besanko will hear legal argument on this point on Tuesday morning.
Mr Roberts-Smith,who denies all wrongdoing,is suing for defamation over a series of reports in 2018 that he says portray him as a war criminal.