VC hero Ben Roberts-Smith’s ex-wife ‘in hot water on emails’

The ex-wife of Ben Roberts-Smith has been accused of sharing confidential emails with Nine newspapers ahead of a looming defamation trial related alleged war crimes in Afghanistan.

Ben Roberts-Smith and his ex-wife Emma Roberts.

The ex-wife of Ben Roberts-Smith has been accused of sharing confidential emails with Nine newspapers ahead of a looming defamation trial related to the Victoria Cross recipient’s alleged involvement in war crimes.

Mr Roberts-Smith, 42, is suing Nine newspapers The Sydney Morning Herald, The Age and The Canberra Times, now under separate ownership, for defamation over reports published in 2018 that alleged the former SAS soldier had committed murder during deployments to Afghanistan between 2009 and 2012.

Mr Roberts-Smith denies the allegations, saying the reports are defamatory because they portray him as a murderous war criminal who “broke the moral and legal rules of military engagement”.

The newspapers will defend the claim using the truth defence.

 The former soldier’s estranged ex-wife, Emma Roberts, is expected to give evidence for the newspapers at a high-stakes defamation trial, due to begin in Sydney on Monday, which is expected to last eight to 10 weeks.

On Friday, the Federal Court heard Ms Roberts had access to the email account used by the former soldier to communicate with his legal team about a military ­inquiry that investigated alleged war crimes in Afghanistan.

Arthur Moses SC, for Mr Roberts-Smith, said the defamation trial may be “contaminated” because Nine had asked Ms Roberts for emails and attachments from her ex-husband’s email account.

“Ms Roberts, the evidence showed, had access to the applicant’s emails. That email account he used was used for corresponding with his lawyers concerning the defamation proceedings and the Afghanistan inquiry conducted by the Inspector-General of the Australian Defence Force,” Mr Moses said.

“If it transpires that she did communicate the material to anybody on (Nine’s) side, either verbally or otherwise, it raises all sorts of problems in terms of the legality of the material in their possession and potential unlawful conduct,” he said.

“We need to know what she has done with the information.”

Mr Moses said the discovery process had revealed that some emails sent to Nine by Ms Roberts had been “deleted” from Mr Roberts-Smith’s “inbox and outbox” without his “consent”.

Discovery involves the exchange of relevant information between parties in litigation to the other side before a trial.

“Privileged material belonging to Mr Roberts-Smith was apparently in the custody of Ms Roberts,” Mr Moses said, adding that some of the documents “could have been caught by the confidentiality orders”.

In April, the court heard a confidentiality agreement had been struck between Mr Roberts-Smith and his ex-wife.

Mr Roberts-Smith urgently filed Federal Court proceedings against his ex-wife on Tuesday.

At a pre-trial hearing in April, Mr Roberts-Smith’s barrister, Bruce McClintock SC, said the media outlets should “rethink” calling Ms Roberts as a witness.

Mr McClintock said he would cross-examine her in court and that “sometimes you pay too high a price to air a family’s dirty linen” during legal proceedings.

Mr Roberts-Smith will be the first witness on Monday.