Phone, police records handed over in Ben Roberts-Smith defamation case

The AFP and telephone companies have handed over documents that could help a court shed light on accusations SAS veteran Ben Roberts-Smith intimidated witnesses.

The Australian Federal Police and telephone companies have handed over documents that could help a court shed light on accusations SAS veteran Ben Roberts-Smith intimidated witnesses.

But a court heard that an “ongoing criminal investigation” means some of the crucial evidence may not see the light of day.

The Federal Court is just weeks from beginning a defamation trial launched by Mr Roberts-Smith against Nine’s newspapers and journalists.

Mr Roberts-Smith claims says the newspapers defamed him by reporting allegations he took part in war crimes — which he denies. The former Fairfax mastheads will vigorously defend the case.

Ben Roberts-Smith at the 2019 ANZAC Day march in Canberra. Picture: Sean Davey.

Lawyers for the warring parties have accused each other of refusing to hand over important documents that could sway the court and the struggle over documents continued on Wednesday after Nine sought phone records from Telstra and Optus as well as notes from the AFP.

The phone records, the court heard, were requested by Nine because they want to see if Mr Roberts-Smith made contact with any witnesses in the upcoming case.

They have alleged in court Mr Roberts-Smith tried to intimidate or influence witnesses including former SAS comrades and even his ex wife.

The decorated soldier’s lawyers told the court they wanted to see the phone records before Nine because they might contain unrelated information about his employment at Channel 7.

His lawyers called it a “fishing expedition” and warned they’d request the court set the records aside unless they were given first access — the court granted their request.

The court also heard Nine’s lawyers had sent a second subpoena to the AFP to acquire material related to witness John McLeod.

Ben-Roberts Smith is a former Australian soldier who was a recipient of the Victoria Cross.

Mr McLeod, the court has previously heard, is accused of sending a letter on behalf of Mr Roberts-Smith to an SAS soldier who served with him in Afghanistan.

Court documents lodged by Nine alleged Mr McLeod, a former freelance 60 Minutes “fixer” and security guard, posted the letter from a Tweed Heads post box. There’s no evidence McLeod knew of the contents of the letter prior to posting it.

The court, on Wednesday, heard Nine were seeking that envelope and any “hand written notes” related to the matter.

The AFP have produced documents, the court heard, but some have been withheld because they relate to “an ongoing criminal investigation” and authorities may seek public interest immunity to keep them sealed.

No details were provided about who or what was the target of the criminal investigation.

The defamation trial is expected to begin early next month.