Ben Roberts-Smith threatened to sue ex-wife, court hears

Soldier Ben Roberts-Smith has been accused of threatening his ex-wife with legal consequences if she gave evidence in a defamation trial.

Decorated war hero Ben Roberts-Smith allegedly threatened his ex-wife warning her that if she gave evidence against him at an upcoming defamation trial he’d sue her, a court has heard.

The former SAS soldier‘s lawyers say his children may now pay “too high a price” when their mother takes the stand and is called “a liar”.

Mr Roberts-Smith is suing Nine‘s newspapers for defamation saying they published reports alleging he’d committed war crimes in Afghanistan. Nine is defending the reports as true.

Australian Army soldier Corporal Benjamin Roberts-Smith. Picture: Department of Defence

Just over one month from the trial lawyers for Nine told the Federal Court they asked for an assurance from the former SAS soldier that he wouldn‘t use a confidentiality agreement against his former wife Emma Roberts.

Instead, they claim, Mr Roberts-Smith wrote a letter to Ms Roberts “threatening” she would be sued if she breached a gag order.

“(Mr Roberts-Smith) wrote to Ms Roberts, threatened her with an injunction, damages and would begin proceedings,” Nine‘s barrister Nicholas Owens SC said.

Ms Roberts was expected to give evidence in favour of her husband when the case began but she is now expected to speak out against him.

Nine has published allegations Mr Roberts-Smith buried a lunch box of USBs in his backyard containing pictures and files related to alleged war crimes.

The soldier’s legal team believe those allegations came from Ms Roberts and wanted to quiz her before the trial.

“The whole series of allegations about buried lunch boxes and other rubbish (aired) on 60 Minutes clearly came from Ms Roberts or via Ms Roberts,” Mr Roberts-Smith’s barrister Bruce McClintock said on Thursday.

Mr Roberts-Smith is suing Nine‘s newspapers for defamation. Picture: Jonathan Ng

Mr Owens said it was “outrageous” that the court was put in a position where the woman could be sued if she spoke to them and again asked for Mr Roberts-Smith to assure them he wouldn’t sue.

The soldier’s lawyers told the court they were unable to provide that assurance.

“It wasn‘t a threat, it was simply a requirement she obey an agreement she entered into,” Mr McClintock said.

“I’m going to have to put to her she’s a liar, there are children involved in this case,” he said.

“(Nine‘s lawyers) are putting me in that position - I wonder if they should rethink what they’re doing. Sometimes you can pay too high a price to air a family’s dirty linen.”

Mr Owens said it was “scurrilous” to suggest they didn’t care about the innocent children caught up in the case.

Judge Anthony Besanko ordered Ms Roberts’ evidence to be outlined in documents rather than in cross-examination.

The duelling lawyers have been trading barbs over the existence of the USBs and what they are purported to contain.

The court heard the Attorney-General has been informed the contents of the drives could disclose materials of national security.

Nine’s lawyers say that proves the material on the drives is relevant to the trial and noted the filenames include “Whiskey 108”.

Whiskey 108 is the name of a compound where an unarmed man with a prosthetic leg was allegedly executed - Mr Roberts-Smith is implicated in that slaying Nine has alleged.

“What is plain as day is the allegations (Mr Roberts-Smith) had in his possession six USBs with national security information that were not discovered … is not baseless it is true,” Mr Owens said.

But Mr McClintock said Mr Roberts-Smith denies burying anything in his backyard.

The reason the A-G was notified, he said, was because the drives contained photos of SAS soldiers drinking in their makeshift bar in Afghanistan - the Fat Lady’s Arms.