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

War hero Ben Roberts-Smith threatened to sue his wife, a court has been told, as he gets set for a defamation battle.

Ben Roberts-Smith threatened to sue his ex-wife as she gets set to testify against the decorated ex-soldier in his upcoming defamation battle.

The Victoria Cross recipient is suing The Age and Sydney Morning Herald over reports that alleged he committed war crimes during deployments in Afghanistan and punched his mistress in the face.

The former SAS soldier has denied the claims and is suing for aggravated damages.

He says the reports, which made allegations of bullying, intimidation and that he killed six Afghans outside of combat, portrayed him as a criminal.

The Federal Court on Thursday was told that Mr Roberts-Smith had sent off a legal letter to his ex-wife Emma Roberts, who was expected to give evidence on his behalf but will now appear as a witness for the newspapers at his upcoming trial.

Ben Roberts-Smith and former wife Emma Smith.

“(Mr Roberts-Smith) threatened her with an injunction and threatened to sue her for damages,” barrister Nicholas Owens SC, acting for The Sydney Morning Herald and The Age, told the court.

The court was told that Ms Smith’s evidence related to allegations that Mr Roberts-Smith buried a USB drive inside a pink plastic children’s lunch box in his backyard.

It was alleged in a report that the USB contained classified documents and videos that could relate to alleged war crimes.

The court was told that it had been alleged that Mr Roberts-Smith removed the USBs from his property on or about June 5.

Ben Roberts-Smith is suing the Sydney Morning Herald and The Age for defamation. Picture: Supplied

Mr Owens told Justice Anthony Besanko that Mr Roberts-Smith had essentially admitted the drives existed because he had served a notice to the Attorney-General that they contained “national security information”.

Mr Roberts-Smith’s barrister Bruce McClintock SC said Mr Roberts-Smith was required to notify the Attorney-General because the drives contained pictures of fellow SAS soldiers.

The court was told that the pictures were taken at the Fat Ladies Arms, an unauthorised military bar inside Australia’s special forces base.

Mr McClintock told the court that he had been put in the “awful” position where he would have to cross-examine Ms Smith and accuse her of being a “liar”.

He also denied that the legal letter amounted to a threat and said it simply asked her to comply with an agreement that she had signed in February this year.

Mr McClintock urged the newspapers’ lawyers to “rethink” their position and said they might pay “too high a price” because it could damage members of Mr Roberts-Smith’s and Ms Roberts’ families through the airing of “dirty linen”.

Ben Roberts-Smith allegedly hid photos taken at the Fat Ladies Arms. Picture: SMG/The Age/60 Minutes.

However, the argument drew swift condemnation from Mr Owens.

“That’s frankly an outrageous submission and I rise immediately to reject it,” Mr Owens said.

“To suggest Fairfax is indifferent to the innocent victims … is a scurrilous one and ought not to have been put.”

Mr Owens also told the court that Mr Roberts-Smith had previously asked Ms Roberts to lie in relation to the matter.

Mr McClintock said Mr Roberts-Smith would give evidence at trial and was eager to defend himself against the allegations.

“He denies concealing any evidence,” Mr McClintock told the court.

“My client wants to get into the witness box to expose the lies told about him … he’s anxious to do so.

Mr Roberts-Smith this week stood down from his role as general manager of Channel 7 Queensland to focus on his upcoming legal battle.

In an email to staff on Monday, Seven West Media chief executive officer James Warburton said that Mr Roberts-Smith would take leave until the conclusion of his eight-week trial, which is scheduled to begin on June 7.