Ben Roberts-Smith did not bash his mistress, defamation judge finds

Ben Roberts-Smith did not assault his mistress after she embarrassed him by getting drunk at a function in Parliament House, Justice Anthony Besanko finds.

Ben Roberts-Smith leaves the Federal Court in Sydney in March 2022. Picture: Christian Gilles / NCA NewsWire

Ben Roberts-Smith did not bash his mistress after she embarrassed him by getting drunk at a function in Parliament House as Nine newspapers had alleged, Justice Anthony Besanko has found.

The judge told a hearing of the Federal Court on Thursday that the woman – known only as Person 17 – was not reliable enough to make a ruling that an assault against her occurred, but Nine Newspapers were found to have proved “contextual truth” in reporting the allegation.

“I am not satisfied that person 17’s evidence is sufficiently reliable to form a basis of a finding that the assault occurred, and that imputation seven and eight are substantially true,” Justice Besanko told the hearing.

“However, I consider that the respondents have played out the defence of contextual truth with respect to those imputations.”

The judge found that Mr Roberts-Smith had committed several murders of unarmed civilians.

Of all the allegations levelled against Mr Roberts-Smith, the claim he had punched a woman was this one that brought the war hero to tears while giving evidence.

“I walk down the street and people will look at me,” Mr Roberts-Smith said, his voice quavering.

“The first thing I think of is that they think I hit a woman.”

Nine claimed Mr Roberts-Smith cheated on his wife with the professional, married woman, who cannot be identified, during a wild six month affair which ended with the war hero punching the woman.

But her credibility was repeatedly challenged on the witness stand.

At one point during the trial, the woman – known by the pseudonym Person 17 – claimed she was approached on a beach by a stranger and shown photos of herself and the war hero having sex up against a window in a room at the Milton Hotel in Brisbane.

She knew which hotel it was, she told the court, “because that was the only location where I had had sex with Ben in that position”.

But she told police the photographs showed the couple naked in bed.

An anonymous letter sent to Ben Roberts-Smith claiming he was spotted in a hotel with a woman Nine calls his "mistress". Picture: Federal Court via NCA NewsWire

While the pair had used the Milton during their affair, they’d never stayed below the 20th floor – and there were no buildings overlooking the hotel.

The woman said the mysterious figure demanded she tell Mr Roberts-Smith’s wife, Emma, about the affair, or the photos would be made public.

But she didn’t mention the bizarre event to Mr Roberts-Smith in text messages she sent later that day.

Asked why Mr Roberts-Smith would want her to go to his wife or have the photographs becoming public, the woman said it was so he could make her out to be “the bad person in the situation”.

“It’s a straight out barefaced lie, isn’t Person 17?” Mr Roberts-Smith’s barrister, Bruce McClintock asked.

“It’s not,” the woman replied.

“You have simply fabricated this story about having sex up against the window to account for the impossibility of photographs being taken in any other circumstances haven’t you?” Mr McClintock asked.

The woman replied: “No.”

Their affair began in October 2017 when they met and flirted at a charity lunch after her husband left to pick up their children. The pair kicked on to another party where they danced and later had sex in his hotel room.

Their “all-consuming” relationship continued, with the two communicating by burner phones and encrypted messages.

“I said I was falling in love with him … He said you don’t want to fall in love with me, I’m not the greatest guy.”

Person 17 told the court that in February 2018 while on an overseas trip she discovered she had fallen pregnant to the war hero.

When she told Mr Roberts-Smith, he told her if she kept the baby, “he would not stick around long-term”.

Soon after, she said, she miscarried the baby but didn’t tell Mr Roberts-Smith.

Instead she told him she would have a termination done at a private hospital in Brisbane, but Mr Roberts-Smith had her followed by his private investigator. The video shot by the PI confirmed his suspicions that she was faking the pregnancy.

She was able to pick up her bag after an invasive procedure. By the time she arrived at a hotel to meet him she had put on dark glasses and bandaged her arm.

The woman claimed Mr Roberts-Smith produced a pregnancy test that he had brought with him “and he made me do it in front of him”. The result was positive, she said.

“I was just crying and told him what had really happened. I told him I’d had the miscarriage,” Person 17 said.

But the turbulent affair continued and a few weeks later the pair attended a black-tie dinner at Parliament House in Canberra at which Mr Roberts-Smith sat on a table with the Prime Minister while she sat with top military officials.

She became very drunk, and as she was leaving the building she tripped on stairs and fell, hitting her head and bruising her thigh.

A businessman at the event would later give evidence that he saw her fall with a “terrible thud” and rushed to help where he saw a large haematoma above her left eye.

Back at their hotel, Mr Roberts-Smith was furious with her, she said.

“He said, ‘What have you done? They’re all going to know we’re having an affair. I should have just left you there.’

“When I said my head was hurting, he said something like ‘It’s going to f**king hurt more’ or ‘I’ll show you hurt’,” she said.

“And then he punched me with his right fist on the left side of my face and eye.”

Text messages between Ben Roberts-Smith and a woman known only as Person 17. PICTURE: FEDERAL COURT via NCA NewsWire

Mr Roberts-Smith emphatically denied punching the woman and says her injuries occurred when she fell down the stairs earlier in the evening.

The woman says the next morning Mr Roberts-Smith showed her photographs he had taken of her naked on the bed and asked her: “Do I need to keep these?”

She says she agreed to lie to her husband about how she sustained the black eye.

The woman claims that on the last occasion they met, following this incident, they agreed to break up.

“He said to me, ‘As long as we’re on the same page, you’ve got nothing to worry about, but if you do anything stupid, or turn on me, I’ll burn your house down and it might not be you that gets hurt, but people that you love and care about.

She says they stayed together that night and had sex, but she woke up crying in the night and knew it was over.

The following day she went to Mr Roberts-Smith’s house and told his wife about the affair.