Ben Roberts-Smith’s high-profile defamation trial may be “contaminated” his lawyers allege, telling the federal court they believe his ex-wife Emma Roberts had access to the former soldier’s emails and may have shared legally privileged, or national security, information.
In a last-minute parallel action before his defamation trial, set to begin on Monday, Roberts-Smith has launched legal action against his estranged former wife, seeking all the information she holds from his email account, as well as a declaration of with whom that information has been shared.
Arthur Moses, representing the former SAS corporal and Victoria Cross recipient, told the federal court: “Ms Roberts, the evidence showed, had access to the applicant’s emails, and that email account that he used was used for corresponding with his lawyers concerning the defamation proceedings, the Afghanistan inquiry conducted by the inspector general of the Australian defence force, and for correspondence with persons associated with his employer.”
Moses says “a concern arose”, when the newspapers Roberts-Smith is suing for defamation, sought evidence from the former soldier of emails and attachments sent from his account and which were not stored anywhere else.
“Discovery also showed that emails had been deleted from the inbox and outbox of this email account without his consent.”
Roberts-Smith sought that his ex-wife produce all information in her possession obtained from the email account.
Roberts provided documents to the Brisbane registry of the federal court on Friday. It is not known what information is contained in those documents: the commonwealth is seeking to have first access to the information because it potentially carries national security implications, is legally privileged, or confidential.
Roberts has been asked to provide an “affidavit deposing to when and how the materials … were obtained by her” along with “ … the identity of every person or entity the first respondent has provided copies of any of the material”.
Moses said Roberts should “identify which material has been provided to which person or entity, when and by which means”.
Moses said the disclosure held critical significance for the upcoming defamation trial Roberts-Smith is bringing against three newspapers.
“Because if it transpires that she did communicate this material to anybody on the respondent’s side [the newspapers being sued by Roberts], either verbally or otherwise, it raises all sorts of problems of illegality of material in their possession and potential unlawful conduct. So we need to know what she’s done with the information.
“If it transpires Ms Roberts did in fact provide material that was privileged to [the newspapers] there are some real issues that will arise in the trial as to what use was made and how it has potentially contaminated those proceedings.”
There is no evidence publicly before the court that Roberts has obtained or distributed information unlawfully.
The court heard the newspapers have told the court they have no documents to produce in response to subpoenas seeking similar records.
Roberts-Smith launched the lawsuit against his former wife on 1 June, but it was not listed in the court files or announced publicly.
Roberts was not represented in court on Friday.
Roberts-Smith, one of Australia’s most highly decorated soldiers, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports published in 2018 which he alleges are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes including murder.
Roberts-Smith, 42, has consistently denied the allegations, saying they were “false”, “baseless” and “completely without any foundation in truth”.
The newspapers are running a truth defence to their reporting.