The Federal Court will no longer upload regular YouTube videos of the high-profile defamation case of war veteran Ben Roberts-Smith, after "persons outside Australia" used them to publish information identifying sensitive witnesses.
Mr Roberts-Smith is suing The Sydney Morning Herald, The Age and The Canberra Times newspapers over a series of 2018 stories which, he claims, contained false allegations of unlawful killings, bullying and domestic violence.
Much of the trial has involved hearing from former and current Special Air Service Regiment (SAS) soldiers, whose identities cannot be revealed for national security reasons.
In an effort to accommodate open justice while COVID-19 restrictions reduced the capacity of courtrooms, videos showing a limited view of the court during appearances of such "sensitive witnesses" have been published to YouTube on a delayed basis.
This allowed for the editing out of any so-called "inadvertent disclosure" of sensitive information — which has occasionally occurred, usually by soldier witnesses who are required to use pseudonyms when referring to most other witnesses — from a live feed provided to journalists and streamed into another room of Sydney's Law Courts building.
However, the Youtube videos of sensitive witness evidence will cease after Justice Anthony Besanko heard an application from the Commonwealth in closed court.
A judgement detailing reasons for the decision reveals the Commonwealth became aware "persons outside Australia" were using the videos for "analysis of information from different sources".
This had then been used to "publish information which identifies, or tends to identify, Sensitive Witnesses", including names or initials.
Justice Besanko said the effect was to undermine the integrity of court orders prohibiting such information being published.
"Action against a person to correct the situation is made difficult, if not impossible, where the person is located outside of Australia," he noted.
Mr Roberts-Smith's legal team supported the application, arguing that anything that made "the possible intimidation of witnesses" easier should be carefully considered.
In opposing the change, publisher Nine Entertainment highlighted the importance of open justice and suggested geo-blocking as a potential solution.
"The difficulty with geo-blocking was identified by the Commonwealth. It can be rendered ineffective by the use of a Virtual Private Network which is a widely commercially-available service," Justice Besanko said.
While the application was heard in closed court, Mr Roberts-Smith's barrister, Arthur Moses SC, alluded to a "flagrant breach of the court's orders" in late April, and requested to discuss the matter in a closed session.
A room in the Law Courts building will be open to the public for a broadcast of the proceedings, subject to capacity constraints.
Justice Besanko ruled the requirements of open justice were satisfied by that provision, without the addition of YouTube videos of sensitive witness evidence.
'Person 11' denies story of teen killing
During the hearing today, a former elite soldier denied, under cross-examination, that Mr Roberts-Smith murdered an Afghan adolescent who was "shaking with terror" after being stopped by SAS patrols in 2012.
Nine Entertainment's barrister, Nicholas Owens SC, put to the witness that the mission to Fasil late that year would have been "memorable" in part because it was their last mission of the deployment.
Person 11 said he had no recollection of the mission.
Mr Owens suggested the teenager had been taken from a group in a ute and handed over, along with a second Afghan man, to Person 11 and Mr Roberts-Smith, which the witness could not recall.
The barrister further suggested that an "explosive entry" was made into a compound, where one of the men from the car was shot by a soldier codenamed Person 56 and the teenager was shot by Mr Roberts-Smith.
"I don't recall any engagements," Person 11 said.
Person 11 denied that a weapon was then placed on the body to give the false impression he was armed at the time of death.
The witness was shown photographs of three men who were detained, including pieces of tape showing numbers and descriptions which suggested they were found in a vehicle.
"I put to you the reason there is no photograph of the second PUC [person under control] taken ... from the vehicle is because that man was murdered by Mr Roberts-Smith in the compound," Mr Owens said.
"I disagree with that," Person 11 replied.
A previous witness called by the newspapers, Person 16, told the court soldiers intercepted a ute and placed four occupants under control, including one who was in his late teens.
He gave evidence of handing two of the occupants to Mr Roberts-Smith's patrol for questioning.
Person 16 claimed when he later crossed paths with Mr Roberts-Smith, he asked what happened to the young person who was "shaking like a leaf".
According to Person 16, Mr Roberts-Smith replied: "I shot that c*** in the head ... it was the most beautiful thing I've ever seen."
Last year in the witness box, Mr Roberts-Smith denied saying any part of that sentence.
