War hero Ben Roberts-Smith ‘wiped information from laptop’, court hears

The news outlets being sued by Ben Roberts-Smith claim he wiped his laptop five days after he was told to retain the material.

Victoria Cross recipient Ben Roberts-Smith has been accused of wiping the contents of his laptop’s hard drive five days after being told he needed to retain the material for his upcoming defamation trial.

Mr Roberts-Smith, 42, is suing Nine newspapers The Sydney Morning Herald, The Age and The Canberra Times for defamation over a series of reports published in 2018, which he says portrayed him as a murderous war criminal during his time as a Special Air Service soldier in ­Afghanistan in 2009-12.

The decorated veteran has denied the allegations, while Nine has indicated it will defend the allegations using a truth defence when the matter goes to trial in Sydney on June 7.

Ben Roberts-Smith has been accused of wiping a laptop that he was asked to produce by lawyers. Picture: Jonathan Ng.

Nine’s barrister, Lyndelle Barnett, told the Federal Court on Tuesday that the media company had sought to obtain a series of USB drives found at Mr Roberts-Smith’s former home last year only to be told the contents had been transferred on to a laptop computer around August.

“We then sought the laptop, with a view to it being inspected by an expert, and were told on Friday night that the applicant has wiped the hard drive of that laptop very recently, on the 17th of April,” Ms Barnett said. “We don’t accept it was appropriate for the applicant to wipe his hard drive after being asked to retain it, but that will be a matter for trial.”

Ms Barnett said Nine had planned to retain an independent expert with “national security classification” to examine the laptop and metadata.

The court has previously been told Mr Roberts-Smith buried a USB containing classified mat­erial in a pink, child’s lunchbox in his Queensland backyard.

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

On Tuesday, judge Anthony Besanko said Nine would also be permitted to include evidence from Mr Roberts-Smith’s former wife, Emma, about the USBs.

Ms Roberts is expected to also give evidence about the alleged efforts undertaken by her former husband to “communicate covertly” with witnesses, including former soldiers.

The barrister acting for Mr Roberts-Smith, Bruce McClintock SC, told the court “nothing sinister” should be inferred from his client’s failure to produce the laptop. “We are happy to provide the laptop,” he said. “I can say there was nothing sinister in what occurred. My client was in the course of buying a new computer and trading in an old one.”

He also suggested Nine had “destroyed” interview recordings with relatives of Afghan farmer Ali Jan, including the man’s wife.

Ali Jan was allegedly kicked off a cliff while handcuffed and then shot dead by Australian soldiers in the village of Darwan in September 2012.

“As I understand it, one recording is of the supposed Ali Jan’s wife. I fail to see how anyone could have ever thought that wouldn’t be relevant,” he said.

“This is a significant issue about the destruction of documents by the respondents and we have not been told when these documents were destroyed.”

He said he would seek an affidavit from Nine reporter Nick McKenzie, author of the allegedly defamatory articles, explaining why recordings were deleted.