A mistress, Covid and a lunchbox: Twists and turns of marathon Ben Roberts-Smith defamation trial
There were twists and turns aplenty throughout the 13 months of the Ben Roberts-Smith trial. Here are the most controversial moments.
NSW
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With seats placed one-metre apart to comply with Covid regulations, not everyone could fit into the sunbathed NSW Supreme Court courtroom as the defamation hearing of the century — with celebrated soldier Ben Roberts-Smith at the centre — got underway all the way back on June 7, 2021.
But most of the main players were there.
High-profile barrister Bruce McClintock SC, a defamation veteran of four decades in courtrooms acting for the likes of Kerry Packer and Geoffrey Rush, chatted about how the trial would be his last.
By his side was fellow barrister Arthur Moses SC, who had just days earlier been unveiled as the boyfriend of then NSW Premier Gladys Berejiklian.
At the other end of the bar table, sorting out their seating arrangement, was the legal team for Fairfax and Nine Newspapers – led by Nicholas Owens SC – who would have the role of defending the journalism of a trio of reporters, Nick McKenzie, Chris Masters and David Wroe.
In the gallery behind sat a mix of reporters, management such as the former Sydney Morning Herald editor Lisa Davies, and interested onlookers.
Something of a hush came over the room as the towering frame of Mr Roberts-Smith entered what over the next 12 months would become his own personal battlefield on which he would defend the legacy that led to him receiving the nation’s highest military honour – the Victoria Cross.
Mr Roberts-Smith has always vigorously denied all the allegations made against him by the three newspapers: The Sydney Morning Herald, The Age and the Canberra Times.
A total of 110 days (across 13 months) and an estimated $25 million, would be spent by the two sides fighting it out in court, in a trial full of many controversial twists and turns.
THE MISTRESS
Between October 2017 and April 2018, Ben Roberts-Smith had a five month affair with a woman, known as “Person 17”.
Aside from the allegations of what happened in Afghanistan, their relationship was a prominent aspect of the trial.
Person 17 claimed in her evidence to the defamation trial that after the 2018 Australian of the Year awards ceremony she drunkenly fell down some stairs inside Parliament House, leading Mr Roberts-Smith to take her back to their hotel.
Once in the hotel room she claims he punched her in the head, a claim Mr Roberts-Smith categorically denied.
During the trial an independent witness previously unknown to Mr Roberts-Smith then came forward to say he saw Person 17 fall down the stairs and the allegation was withdrawn.
Another incident involving Person 17 saw her claim to have been approached on a beach by an unknown man who pulled out a pair of photos that showed her and Mr Roberts-Smith having sex against up the window of a Brisbane hotel.
She claimed the unknown man told her if she did not tell Mr Roberts-Smith’s wife, or the photos would be made public. Mr Roberts-Smith claimed to have no knowledge of the incident.
After their final romantic interaction on April 5, the woman arrived on Mr Roberts-Smith’s doorstep where she told his wife Emma about their affair.
A CONTROVERSIAL BONFIRE
Ben Roberts-Smith was asked why he had poured petrol over his laptop and set it on fire in his backyard.
“Because if you don‘t get rid of a hard drive, all of the data on the hard drive, all of your personal financial information, all of your passwords, all of your photos, can typically be pulled off it,” Mr Roberts-Smith told the trial.
This, he claimed, was his normal practice for old computers and something he had done for years before.
It was not, he said, an attempt to destroy evidence after becoming aware the AFP may be investigating him.
WHAT’S IN YOUR LUNCHBOX?
A pink child’s lunch box that was dug up from the backyard of Ben Roberts-Smith’s rural home by his wife and a friend was an unusual part of the trial.
The court heard that Mr Roberts-Smith’s ex-wife and her friend claimed 13 USB sticks containing videos of military operations in Afghanistan and photos taken in the Fat Ladies’ Arms – an unofficial bar on the SAS’s military base – were hidden in the lunch box.
Mr Roberts-Smith said this was “false”.
The USB’s, he told the court, were in a drawer of the computer desk he and his wife shared.
He admitted that keeping them was “wrong” but dismissed suggestions doing so posed a risk to Australia’s national security.
THE PRIVATE INVESTIGATOR MATE
John McLeod was the head of security at a top Brisbane hotel when he met Ben Roberts-Smith.
Over the next few years they developed a close friendship, with Mr McLeod becoming one of the soldier’s most trusted confidante’s and also an occasional gofer.
At trial, Mr McLeod testified against his former friend.
He claimed in his evidence that while working for Mr Roberts-Smith he had been asked to surveil his mistress to see if she visited an abortion clinic.
Mr McLeod also claimed he had posted four envelopes on behalf of Mr Roberts-Smith containing letters for two former SAS soldiers that were intended to intimidate them from giving evidence against the VC recipient.
When The Daily Telegraph broke the story that Mr McLeod would give evidence against Mr Roberts-Smith in court, it led to a bizarre tweet from Nine journalist Nick McKenzie.
“Shocking development in Ben Roberts-Smith case,” he tweeted. “Key police, court witness about alleged witness intimidation is being followed by Brisbane photographer Daily Tele probing false claims about same witness. News Limited at risk of being used. Witnesses should NOT be harassed. AFP aware.”
What those false claims were, or how News Limited was “used”, remains unclear.
THE Covid DISRUPTION
Even the defamation trial of the century could not avoid the impacts of the Covid-19 pandemic.
The initial start date of the trial had to be delayed by months because of the statewide NSW lockdown.
Once it eventually started in June 2021 it ran for less than a month before being delayed a further three weeks, at which point there was discussion about possible alternative arrangements that could be made – including moving the trial interstate.
But on August 1, Justice Anthony Besanko ruled he did not want to take the trial out of NSW, and delayed it for three months.
That interruption would eventually last six months, before things finally got back underway in early 2022.
The trial would conclude on July 27 that year leaving both sides to anxiously await Judge Besanko’s verdict.
Originally published as A mistress, Covid and a lunchbox: Twists and turns of marathon Ben Roberts-Smith defamation trial
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