Ben Roberts-Smith lawyer tells court media may have engaged in ‘unlawful conduct’ in relation to alleged drone footage

The lawyer for Australia’s most decorated soldier has made a big statement in court about media outlets being sued for defamation.

The lawyer for Ben Roberts-Smith has told a court that media outlets potentially engaged in “unlawful conduct” by publishing material they allege the war hero hid on a USB.

The decorated soldier is suing The Age, The Sydney Morning Herald and The Canberra Times over investigative reports he claims falsely painted him as a murderous war criminal during his time as a Special Air Service soldier in Afghanistan between 2009 and 2012.

Mr Roberts-Smith, who was awarded Australia’s highest military honour, strongly denies any wrongdoing.

His lawyer Arthur Moses SC told a Federal Court hearing on Thursday there were “serious concerns” raised in a letter from the Australian Government Solicitor.

The SAS veteran’s lawyer Arthur Moses SC arrives at the Federal Court in Sydney. Picture: NCA NewsWire / Christian Gilles

Mr Moses said it was in relation to material the media companies had in their possession and why they didn’t notify parties about it prior to publication of an article on April 14 written by Nick McKenzie and Chris Masters.

There were “no steps” taken to do that, he told the court.

An article published on that date aired explosive allegations the former soldier dug a hole in his backyard and buried USB drives with drone footage of military operations and classified reports.

Mr Moses said the material could be subject to an application for it with “an explanation as to where they got it from”.

“That raises a serious concern in terms of potential unlawful conduct in respect of Commonwealth material they’ve purported to publish,” the lawyer told the court.

Members of the Australian Defence Force and the Australian Federal Police were being called to give evidence under subpoena, the court was also told.

But the federal police might “resist” the subpoenas issued to members of the special operations command because of “public interest immunity”.

The former soldier pictured during an operation in southern Afghanistan. Picture: Department of Defence

Justice Wendy Abraham said the matter should be dealt with as a matter of “urgency”.

Mr Moses didn’t want to keep coming before the court and wanted all issues dealt with at one hearing.

“We want this dealt with in the one hit, we don’t want to keep coming back here,” the barrister said.

The SAS veteran, who served in the Middle East between 2006 and 2012, said the articles defamed him by falsely painting him as someone who breaks the laws of military engagement.

The newspapers say the articles were not defamatory, and will seek to prove the allegations as true in court.

The defamation trial is expected to begin in Sydney on June 7 and to last for up to eight weeks.