Barrister Bruce McClintock SC, for Mr Roberts-Smith, raised that possibility during a brief hearing before the Federal Court on Wednesday.
Australia’s most decorated soldier is suing Nine Newspapers over allegations he committed war crimes including murder while serving with the Special Air Service in Afghanistan.
The trial was suspended on June 29 after a month of hearing because of Sydney’s COVID-19 lockdown and the inability of interstate witnesses to give evidence.
Nine was due to call four Afghan witnesses to give evidence on July 26 over audio/visual link from Kabul through an interpreter based in Ontario, Canada.
Mr Roberts-Smith, 42, is suing three newspapers at the Federal Court trial in Sydney over media reports alleging he was involved in war crimes, murders and bullying in Afghanistan
The trial has previously been told Nine will call evidence from 21 current and former SAS members as well as several Afghan villagers. Other notable witnesses set to testify include Mr Roberts-Smith’s ex-wife Emma Roberts. The former couple is pictured together
Mr McClintock said he expected 20 people would need to be physically present in the Sydney court room to hear the Afghans’ evidence.
‘These people are accusing my client – or at least one of them is – of a murder,’ Mr McClintock said.
Mr McClintock told Justice Anthony Besanko that crowding 20 people into a Sydney court room would be impossible under social distancing rules.
‘That carries real risk, Your Honour,’ Mr McClintock said. If one person in the hearing was exposed to the virus everyone else would have to self-isolate.
Nine has prepared an affidavit outlining the deteriorating circumstances in Afghanistan as coalition forces led by the United States withdraw from the country.
Mr McClintock said it seemed unlikely Taliban insurgents would soon launch an assault on the nation’s capital and that for now, ‘Kabul seems relatively safe’.
Many of Nine’s – and some of Mr Roberts-Smith’s – witnesses will be coming from Perth, where the Special Air Service is based.
Mr McClintock said Western Australia had ‘traditionally’ been slow to open its borders to other states that had been in lockdown.
He said depending on what happened in Sydney in coming weeks it might be necessary to consider shifting the trial to Adelaide or Perth.
Mr Roberts-Smith is pictured receiving his Victoria Cross for gallantry from then Governor-General Dame Quentin Bryce in 2011. He also holds the Medal for Gallantry
Justice Besanko adjourned the matter until Monday when he will hear further submissions about when the hearing can resume.
Mr Roberts-Smith is suing three newspapers over media reports alleging he was involved in war crimes and bullying in Afghanistan.
The 42-year-old is also suing the outlets over a claim he assaulted his mistress, a woman known as Person 17, in a Canberra hotel room.
The newspapers claim Mr Roberts-Smith was complicit in and responsible for the murders of six unarmed Afghans.
Nine alleges Mr Roberts-Smith killed insurgents who had been captured and none of the killings was the result of decisions made in the heat of battle.
The landmark trial was in its fourth week when it was paused shortly after Mr Roberts-Smith stepped out of the witness box.
Before Nine could open its defence case barrister Nicholas Owens SC flagged that crucial SAS witnesses were unavailable due to border rules in Western Australia, Queensland and Victoria.
The trial has previously been told Nine will call evidence from 21 current and former SAS members as well as four Afghan villagers.
The former SAS corporal’s legal team argues their client is a victim of a lying campaign by journalists and failed soldiers jealous of his stellar military career and Victoria Cross
Mr Roberts-Smith is suing newspapers including the Sydney Morning Herald which ran this front page investigation into allegations of war crimes committed in Afghanistan on the weekend of June 9 and 10, 2018
Before the case was adjourned former Liberal politician and Australian War Memorial director Brendan Nelson gave evidence as a reputational witness for Mr Roberts-Smith, saying the soldier had been held in high regard.
‘He was the subject and object of what I would regard as reverential mobs,’ Dr Nelson said. The media reports had a devastating impact, he added.
Notable witnesses set to testify for Nine include federal Liberal MP Andrew Hastie, a former SAS captain, and Mr Roberts-Smith’s ex-wife Emma Roberts.
The trial was expected to run for 10 weeks before the COVID-19 disruption complicated matters.
Mr Roberts-Smith denies all the claims against him while the news outlets defend them on the basis of truth.
The former SAS corporal’s legal team argues their client is a victim of a lying campaign by journalists and failed soldiers jealous of his stellar military career and Victoria Cross.
Mr Roberts-Smith’s trial was expected to run for 10 weeks before the COVID-19 disruption complicated matters. He is pictured serving in Afghanistan
Ben Roberts-Smith’s war crimes trial of the century in Sydney could be shifted to Perth or Adelaide