The girlfriend of Ben Roberts-Smith has accused former SAS soldier and potential war crimes witness Andrew Hastie of being a “traitor” after the Liberal MP posted a photo of himself and his children remembering the fallen on ANZAC Day.
Sarah Matulin commented “yeah you’re a traitor” on the Instagram post made by Hastie on Saturday that the former SAS captain had captioned that “honouring our veterans and ADF” was “a responsibility for all Australians, young and old.”
“Lest we forget,” the Hastie post said, under a photo of the politician holding hands with his young daughter as his son carried a wreath at an Anzac Day event.
Matulin’s comment was later deleted. On Monday, speaking via Robert-Smith’s lawyer Karen Espiner, Matulin said it was a “mistake to make that comment in a public forum and wasn’t done with Ben’s knowledge”.
Hastie told this masthead it was important that people “reflect carefully on the seriousness of these matters before commenting online”.
The now West Australian-based Liberal-MP was deployed as SAS captain in 2013 and Afghanistan in 2010. His Anzac Day post was also attacked by disgraced ex-Liberal party staffer Bruce Lehrmann, who was found by a civil court judge to have raped his former colleague Brittany Higgins.
Lehrmann commented: “your betrayal of BRS… won’t be forgotten.”
Hastie is a potential witness against Roberts-Smith over his connection to an alleged mission in which a junior soldier alleged Roberts-Smith ordered him to execute an Afghan detainee and then cover it up.
Hastie was one of 21 SAS veterans subpoenaed as a witness in the defamation case Roberts-Smith brought against this masthead and lost.
When Roberts-Smith was arrested and charged with five counts of war crimes – murder earlier this month, Hastie released a statement saying that he had given “testimony under oath, as required by law” during the defamation case.
“Mr Roberts-Smith is now facing criminal charges in relation to this operational mission, so it is possible that I will be called as a witness to this trial.”
Several legal experts who did not want to comment publicly due to the sensitivity of the case explained there are certain contexts in which contacting a criminal witness could be illegal, including those with the potential to obstruct the course of justice.
Other instances may not be illegal but could be seen to be intimidatory, inappropriate or improper, they said.
There is no suggestion Matulin acted illegally, particularly given Hastie has not yet been confirmed as a witness in the criminal proceedings.
The charging of Roberts-Smith with allegedly executing, or ordering junior soldiers to execute, unarmed Afghan detainees has sparked a particularly hostile response from ultra-conservative and nationalistic figures on social media.
Some reporters and public commentators have also weighed into the debate.
An article published in The Nightly by journalist Aaron Patrick last Thursday quoted a legal expert, Professor Gary Edmond, warning that a junior soldier expected to testify against Roberts-Smith about ordering to execute a prisoner might be considered “unreliable because they are involved in the surrounding events.”
The Nightly is a Perth-based digital newspaper launched by Kerry Stokes’ Seven West Media and heavily backed by billionaire mining magnate Gina Rinehart.
However, in an email, Edmond said that he had also told Patrick that “as a type or class of witness, those who are or might be criminally concerned in the events [or associated events] might also be considered to be credible, and their evidence accepted as compelling.”
In addition to more than a dozen SAS witnesses who will testify about Roberts-Smith’s alleged war crimes, the Commonwealth has given indemnities to four more SAS soldiers who claim that they were ordered by the Victoria Cross recipient to execute detainees.
“The judge will often warn the jury about a witness’s criminal involvement and refer to any immunity from prosecution for their testimony, but that does not mean that the specific testimony should not be accepted or is necessarily unreliable,” Edmond said, adding that “not every witness with an incentive to lie or downplay their criminality does so”.
“In many cases the evidence of those who were criminally concerned will be persuasive and capable of satisfying proof beyond reasonable doubt – for both a jury and an appellate court … Those who are criminally concerned can be very credible witnesses.”
Patrick said his quotes from Edmond were “completely accurate” and that he stood by his story. “I’ve received no complaint or otherwise from him or his employer,” he said.
A section of his article was removed amid complaints from lawyers acting for former SAS soldiers that it had the potential to breach a non-publication order by including information that could reveal the identity of a witness.
This masthead is not reproducing the information because of this risk.
The Nightly said it worked cooperatively with the Attorney-General’s Department in respect to concerns raised and remains comfortable with its coverage of the Roberts-Smith matter.
The Sunday Telegraph this week published an article about Matulin, quoting a source describing her as a “deep and smart thinker”.
“Sarah is brilliant and will be running the strategy to help him say and do all the right things,” the piece quoted. “He is very lucky she’s there for him.”
Roberts-Smith, Australia’s most-decorated living soldier, was arrested following a five-year investigation by the secretive Office of the Special Investigator and charged with five counts of the war crime of murder. He has vowed to fight the charges.
Roberts-Smith and Matulin on Saturday attended a beachside dawn service on the Gold Coast. The accused war criminal sat in the rain, adorned in medals received from his Afghanistan service.
He did not lay a wreath during the formalities, which did not directly mention the Victoria Cross recipient, and later interacted with well-wishers.
The 47-year-old spent 10 days in custody following his arrest, before being granted bail to live in Queensland. Conditions of his bail include that he report to police three times a week and not contact prosecution witnesses.
Roberts-Smith has already failed in the civil courts – as part of a defamation action – to contest allegations that he committed war crimes, including murders, taking his case all the way to the High Court.
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