Ben Roberts-Smith lawyer accuses Nine of abuse in defamation trial

Barristers for Ben Roberts-Smith and Nine have traded accusations in a heated court hearing as allegations the decorated war hero buried incriminating evidence emerge.

Lawyers for embattled war hero Ben Roberts-Smith have accused newspapers of running a campaign of “abuse” after the publications claimed the former soldier buried evidence in his backyard.

In a tense Federal Court hearing on Wednesday, high profile lawyers traded accusations of unfair treatment of Afghan villagers and “prejudice” against the trial which is eight weeks away.

Mr Roberts-Smith is suing Nine newspapers, its publications the Sydney Morning Herald and The Age as well as journalist Nick McKenzie for defamation over a series of articles alleging the decorated soldier committed war crimes in Afghanistan.

He denies all wrongdoing.

Victoria Cross recipient and Afghanistan veteran Ben Roberts-Smith. Picture: Toby Zerna

Nine Entertainment, which bought the Fairfax papers after the stories were published, ran a television segment on Sunday evening alleging Mr Roberts-Smith buried USB drives in his backyard that contained compromising evidence of his conduct while deployed.

Nine’s barrister, Nicholas Owens SC, criticised the soldier’s legal team who want numerous guarantees and safeguards put on Afghan villagers who will give evidence via videolink from Kabul.

“It treats these ... witnesses as some kind of inherently suspect class of witness subject to additional strictures that are not to apply to any other group of witnesses,” Mr Owens said, suggesting it could be simply because they were Afghani or based in Afghanistan.

Mr Roberts-Smith‘s barrister, Arthur Moses SC, said the claim was “offensive and ridiculous”.

Mr Owens said the court needed to deal with “apparently concealed documents”, the USBs and suggested there could be “deficiencies in discovery”, questioning whether Mr Roberts-Smith’s legal team handed over all the information relevant to the case.

Former Governor-General Quentin Bryce awards the Victoria Cross to Corporal Benjamin Roberts-Smith. Picture: Department of Defence

Corporal Benjamin Roberts-Smith. Picture: Department of Defence

The SAS-turned media executive‘s barrister returned fire.

“No one bothered to tell us or Your Honour (the publications) were going to drop another story and then come to court and ask for material,” he said.

“It is inappropriate, eight weeks out from trial, that anyone who reads the media or watches the program can see there‘s a concerted effort to publish material prejudicial to (Mr Roberts-Smith).

“That is an abuse. If (Nine) want to run the case they can do it properly.”

Mr Moses said it was “very serious” that someone, assumed to be journalist Nick McKenzie, appeared to have obtained the USB when there was no information about when Nine newspapers received it, what is on it or if the lawyers were made aware.

The soldier‘s legal team flagged they would subpoena the USB so it could be entered onto the court’s record.

“We‘re not going to allow assertions to be made from the bar table that discovery hasn’t been complied with ... when it was done in the matter in which it was,” Mr Moses said.

In a statement to The Daily Telegraph Mr Roberts-Smith refuted the latest allegations against him as “entirely untrue” and sought to clarify a number of issues.

He did not hide any information from an Australian Defence Force Inquiry into the Afghanistan allegations, he said, nor did he threaten any witnesses to the inquiry.

Further, he said, he never buried a USB in his backyard and his home was never raided by Australian Federal Police.

The statement said the stories appear to be “either an attempt to intimidate Mr Roberts-Smith into discontinuing his defamation proceedings, or to punish him for bringing them”.

“Mr Roberts-Smith risked his life for his country, having served in Afghanistan over six years through scores of missions where his safety and that of other members of the SAS was in constant jeopardy.”

“It will neither intimidate nor deter him from proceeding with the trial and bringing the respondents, including Mr McKenzie to account,” the statement says.