Person 35 witness loses legal bid

An SAS soldier, who stood shoulder to shoulder with Ben Roberts-Smith, has lost a bid to keep service documents sealed as he prepares to take to the stand as a witness in the decorated soldier’s defamation trial.

Mr Roberts-Smith is suing Nine’s newspapers alleging they defamed him with reports he committed war crimes in Afghanistan and punched a woman in the face. He denies all wrongdoing.

The high profile defamation case is set to begin next week but witnesses who spoke with the Inspector General of the Australian Defence Force have asked for some of their evidence to be kept sealed.

Two soldiers known as Person 5 and 11 opposed the release of information by the IGDAF about their time in Afghanistan.

Person 11, Nine claimed, was involved in the infamous story of an Afghan farmer Ali Jan being kicked off a cliff and shot.

A third and lesser known soldier is known only as Person 35. Nine claimed he was “intimately involved in other crimes”.

Person 35 opposed a subpoena, sent by Nine to the IGDAF in April, to produce documents that related to him.

Justice Wendy Abraham, on Tuesday, refused his request to strike out the subpoena and said Person 35 could not establish “public interest immunity” over the documents held by the IGDAF.

Exactly what Nine wanted from the IDGAF has not been revealed and Person 35’s lawyers will have until Wednesday afternoon to request redactions to the court orders.

Lawyers for Mr Roberts-Smith, previously, said soldiers called by their client deserved to know what allegations would be put against them by Nine.

Mr Roberts-Smith’s barrister, Bruce McClintock SC, said Person 5 and Person 11 were the strongest example of that.

“Many witnesses on our side are accused of serious wrongdoing,” Mr McClintock told the court in late April.

“The consequences for those men could be of extraordinary gravity just by giving evidence in chief.”

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