Special forces trooper Ben Roberts-Smith had taken legal action against his ex-wife after she claimed she leaked a photo of him drinking from a prosthesis that allegedly belonged to a dead Afghan man.
Lawyers for the Victoria Cross recipient, 42, filed a lawsuit against his estranged partner Emma Roberts on Thursday, just days before his blockbuster defamation lawsuit over war crimes and domestic violence begins.
The nature of the legal action against his wife is unknown and is scheduled for just before Monday’s so-called trial of the century begins.
Roberts-Smith is seeking damages of an estimated $2-3 million against The Age, The Sydney Morning Herald and the Canberra Times.
Special forces soldier Ben Roberts-Smith is suing his ex-wife, claiming she leaked photos of him drinking from a prosthetic leg (pictured) that allegedly belonged to a dead Afghan man
SMH and The Age’s side Nicholas Owens, SC, told the court at a pre-trial hearing that Mr. Roberts-Smith warned Ms. Roberts in a letter about speaking with the news outlets’ attorneys, The Sydney Morning Herald reported.
The letter stated that Roberts-Smith would seek a court order or attempt to sue her if she spoke about possible evidence.
The attorney for the SAS veteran, Bruce McClintock, SC, said the letter was a confidentiality agreement, not a threat, that was agreed upon by two legally represented parties – and “we are not relinquishing it.”
Another attorney for Roberts-Smith, Matthew Richardson, told a hearing that the team was still going through images on USB drives that were crucial to the case.
The court heard that the lawyers for SMH and The Age had still not been able to access material on the USB drives.
They are said to have photos of soldiers drinking from a prosthetic leg that allegedly belonged to an Afghan man who was wrongfully murdered.
“We don’t have the material on the USBs and . . . my client has not received them from the applicant’s ex-wife,” Mrs. Barnett said.
But Richardson claimed the stores had gotten the footage from Roberts-Smith’s ex-wife.
Emma Roberts – ex-wife of Australia’s most decorated soldier – has ‘mirrored’ and will testify for Nine, court has heard
Roberts-Smith will be the first witness to challenge claims he played a role in the alleged murders of six people while serving in Afghanistan between 2009 and 2012.
He will also deny that he punched a woman in the face while they were having an affair with in 2018.
“My client wants to be on the witness stand and he wants to expose the lies that…the respondents have been telling about him,” attorney McClintock SC said at a recent hearing.
“He’s eager to do that.”
The trial begins with an opening speech by Mr. Roberts-Smith’s attorney, followed by the soldier who will be his commander in chief and is interrogated by Nine.
Character witnesses – originally including former Governor General Dame Quentin Bryce – will then testify to the soldier’s reputation.
Nine will then present its case: that the serious allegations it has leveled against Mr. Roberts-Smith are true.
Roberts-Smith’s reputation is at stake, as is the country’s understanding of Australia’s role in the Afghan war. Above the soldier at the Australian War Memorial
The media company claims that Roberts-Smith was complicit in and responsible for the six alleged murders during his broadcast and that they constituted war crimes.
All of Nine’s witnesses will testify, including his ex-wife Mrs. Roberts, her boyfriend, a former bodyguard of Schapelle Corby, and several Afghan villagers.
Then Mr. Roberts-Smith’s team will summon evidence from his other witnesses.
Roberts-Smith’s lawyers were determined that their witnesses would be called after Nine presented their case and were awarded that procedural victory by Judge Anthony Besanko in a decision published last week.
There is a lot at stake in the process. Mr Roberts-Smith’s reputation would be shattered if Nine successfully defends the action.
Not least considering the mother of his two children, Ms Roberts has sensationally ‘mirrored’.
Seven owner Kerry Stokes (left) is funding the Roberts-Smith lawsuit. Above with wife Christine Simpson
Roberts-Smith’s attorney, Mr McClintock, said he will have to call her a liar at trial and warned it would be a high price to “air out a family’s dirty linen”.
Nicholas Owen SC for Nine recently told the court that Ms Roberts’ evidence will be carefully limited to the cases at hand.
Losing Nine would be a devastating blow – both in financial terms, given the hefty legal costs on top of multimillion-dollar damages – but also to morale.
The company has invested heavily in the case with some of the company’s leading and most acclaimed journalists behind the stories in question, including multiple Walkley Award winner Nick McKenzie and veteran reporter Chris Masters.
Also, the egos of the country’s biggest media owners are at stake.
Seven billionaires and chairman of the Australian War Memorial have funded Roberts-Smith’s legal action.
In audio obtained by 60 Minutes, Mr Roberts-Smith said he would be ‘f***ed’ without Mr Stokes’ financial firepower.
Ben Roberts-Smith will be the first witness to testify at his trial for defamation of war crimes. Should he win, he could take between $2 and 3 million in damages, legal sources estimate
Even Rupert Murdoch appears to have a dog in the running.
Sydney tabloid The Daily Telegraph has used recent developments in the case – Nine ‘not pushing’ a seventh murder claim – to prank rival publisher Nine with a front page story.
Also at stake is the truth about what happened in the longest war ever.
Mr McKenzie has said there are “critical issues at stake”, describing the trial as a “difficult, essential search for the truth in (and after) war for Australia and Afghanistan.”
The trial is expected to last about 10 weeks from June 7.
Not everything is likely to be open for public consumption – with national security concerns meaning some evidence could be heard behind closed doors.