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OSI gains access to sensitive material from Roberts-Smith trial

A special investigator has gained access to sensitive material from Ben Roberts-Smith’s unsuccessful defamation trial.

user iconNaomi Neilson 28 September 2023 Big Law
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After agreeing to narrow the scope of material it was seeking, the Office of the Special Investigator (OSI) – the first dedicated war crimes investigator in Australia – was granted access to certain sensitive material in the Federal Court on Wednesday (27 September) morning.

The OSI will investigate Mr Roberts-Smith after Justice Anthony Besanko found The Sydney Morning Herald, The Age, and the Canberra Times had proven to the civil standard that the former solider was complicit in the murder of four Afghanistan prisoners.


Mr Roberts-Smith, who has not been criminally charged with any war crimes, has filed a notice to appeal Justice Besanko’s ruling.

Redactions will now be made to material from the trial, including closed-court transcripts, outlines of evidence and information stored on a secure laptop. This will then be reviewed by a team of special counsel before it is passed onto the OSI.

Justice Robert Bromwich cautioned the parties from using electronic redactions following an “unhappy incident”, unrelated to the current matter, where electronic redactions were able to be removed.

Justice Bromwich also added having the team of special counsel review the material first – and act as a “mechanical and qualitative filter” – alleviated concerns about what the OSI could access.

The OSI had previously sought a larger range of material, but Mr Roberts-Smith’s barrister, Arthur Moses, warned that access to sensitive material could have potentially “contaminated” the investigation.

This comes two days after the Seven Network was granted leave to appeal a Federal Court order that it must hand over confidential material relating to its decision to fund the defamation matter.

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