Decorated soldier Ben Roberts-Smith’s ex-wife allegedly accessed an email account he used for confidential legal correspondence about his high-stakes defamation case and the Afghanistan inquiry, a Sydney court has heard.
- Ben Roberts-Smith’s defamation trial against three Nine newspapers is set to begin on Monday
- His lawyer said the proceedings would be “contaminated” if Mr Roberts-Smith’s ex-wife sent confidential information to Nine
- Ms Roberts will appear as a witness for Nine, which is relying on a defence of truth
The development, revealed in the Federal Court on Friday, has the potential to “contaminate” a 10-week trial due to begin on Monday if it is found that material from the account was passed on to other parties after being accessed unlawfully.
The Victoria Cross recipient launched the action against Emma Roberts this week.
His lawyers sent Ms Roberts legal notices to produce, by Friday afternoon, all information relevant to her accessing, viewing, extracting, copying or downloading data from Mr Roberts-Smith’s account.
Mr Roberts-Smith is suing three newspapers owned by Nine over a series of 2018 articles that reported allegations related to his deployments to Afghanistan, claiming they depicted him as a criminal who broke the moral and legal rules of military engagement.
Ms Roberts will appear as a witness for the media company, which is relying on a defence of truth.
Mr Roberts-Smith’s barrister, Arthur Moses SC, today told the court a “concern arose” in April after the respondents in the defamation case served him a notice to produce emails or attachments “not stored by [him] anywhere else” but the email account.
“Ms Roberts, the evidence showed, had access to the applicant’s emails and that email account that he used for corresponding with his lawyers concerning the defamation proceedings and the Afghanistan inquiry and correspondence with persons associated with his employer,” Mr Moses told the court.
Emails had been deleted from the inbox and outbox “without his consent”, Mr Moses said.
The court heard law firm Minter Ellison, which is acting for Nine in the defamation case, and The Age newspaper have both told the court they have no documents to produce in response to subpoenas seeking similar records.
Justice Robert Bromwich said Ms Roberts had handed over documents to the Brisbane registry of the court on Friday morning.
Mr Moses claimed Ms Roberts may have information that was covered by legal privilege, along with documents that would have been caught under confidentiality orders made by the Inspector-General of the Australian Defence Force in relation to the Afghanistan inquiry.
“If it transpires that she did communicate material to anyone on the [defamation] respondent’s side, it raises all sorts of problems in terms of illegality of material in their possession and potential unlawful conduct,” he said.
Ms Roberts has been asked to provide the court with an affidavit about the matter.
But Mr Moses said part of the “urgency” in the case against Ms Roberts was that the alleged breach would trigger “issues that will arise in the [defamation] trial”, including how it may have “contaminated the proceedings”.
Justice Bromwich, who is not overseeing the defamation case, said he would keep the trial judge apprised of developments so the separate case did not affect “the smooth running of the trial”.
Barrister Kristina Stern for the Commonwealth sought first access to any documents produced due to “real possibility of sensitive Commonwealth information being included in the material”.
Today’s hearing is the latest in a series of dramatic legal twists before the defamation case begins.
Mr Roberts-Smith will be the first witness after an expected two-day opening address by his barrister.
Nine’s articles reported allegations including that he was involved in the unlawful killing of Afghan men, had committed an act of domestic violence on a woman in a Canberra hotel room, and had bullied his colleagues in the elite Special Air Services Regiment.
Mr Roberts-Smith denies the allegations.