Australia’s most decorated soldier Ben Roberts-Smith has allegedly threatened to sue his ex-wife with his lawyer warning he will call her a ‘liar’ at trial, a court has heard.
In an unusual twist, the former SAS trooper’s former wife Emma Roberts has ‘flipped’ and is expected to give evidence against the father of her two children in his defamation trial against Nine newspapers.
Mr Roberts-Smith is suing the Sydney Morning Herald, The Age and the Canberra Times over ‘false’ claims he committed war crimes while deployed in Afghanistan. Nine is defending the defamation claim on a truth defence, with a trial due to begin in weeks.
During argument over the evidence Ms Roberts will give, the Federal Court on Thursday heard that Mr Roberts-Smith had threatened to sue Ms Roberts over a confidentiality agreement they struck just months ago.
Nicholas Owens SC for Nine said Mr Roberts-Smith had threatened her ‘with an injunction, he threatened to sue her for damages’ if she gave evidence against him at trial.
Mr Owens demanded an assurance that the soldier agree to ‘not follow through on his threats’.
Ben Roberts-Smith, on right, allegedly threatened to sue his ex-wife Emma Roberts over a confidentiality agreement, the Federal Court heard on Thursday. Ms Roberts has ‘flipped’ and is expected to testify against her former lover in his defamation trial against Nine newspapers
Mr Roberts-Smith’s lawyer warned he would have to call Ms Roberts (above) a ‘liar’ during cross examination and said the family’s ‘dirty laundry’ would be aired, in a ‘dangerous’ course
But Bruce McClintock SC for Mr Roberts-Smith said the veteran wasn’t making a threat but simply stating a requirement ‘she obey an agreement’ signed in February.
He warned he will put to Ms Roberts that she is a ‘liar’ when she is cross-examined at the trial itself.
‘I’m going to have to cross examine Ms Roberts,’ Mr McClintock told Justice Anthony Besanko. ‘I’m going to have to put to her that she’s a liar.’
Mr McClintock warned the former couple had twin girls and the case would see a family’s ‘dirty laundry’ aired in court.
‘My learned friend is putting me in that position. I wonder if they should rethink what they’re doing.
‘It’s a dangerous course and, in my submission, a tawdry one …. Those things don’t ever matter to Fairfax.’
That led Mr Owens to leap to his feet and slam the ‘scurrilous’ claim.
Mr McClintock also alleged in court that claims aired recently by 60 Minutes about buried USB sticks had ‘clearly’ come from Ms Roberts or her friend in some way.
The program alleged Mr Roberts-Smith had buried six USB sticks in a lunchbox in his backyard which potentially contained compromising material.
‘There was a whole series of allegations about buried lunchboxes and similar rubbish on 60 Minutes,’ Mr McClintock said.
‘They obviously clearly came up from Ms Roberts …. It clearly came from Ms Roberts, or via Ms Roberts or Ms Scott.’
Ms Scott is Danielle Scott, a friend of Ms Roberts, who is also expected to be called as a witness at trial.
Mr Roberts-Smith this year debuted his new girlfriend Sarah Matulin – who quit her job at Channel Seven when their relationship became serious
Mr Roberts-Smith left the army in 2013 and began studying business at the University of Queensland
Mr McClintock said Roberts-Smith ‘denies burying anything in the garden, anything at all’ and has not concealed any evidence or relevant information from the court.
Mr Owens for Nine said the allegations Mr Roberts-Smith had the USB sticks containing national security information ‘is not baseless, it is true’.
Mr Owens told the court that Mr Roberts-Smith had notified the Attorney-General about having possession of the USB sticks. He suggested Mr Roberts-Smith’s lawyers could be making a point that the USBs were elsewhere – ‘in his bookshelf, in his underpants drawer’ – rather than buried in the backyard.
Thursday’s hearing concerned legal argument over whether Mr Roberts-Smith’s lawyers should made aware of the evidence Ms Roberts is planning to give.
Mr McClintock argued that Nine ‘have a very good idea of what Ms Roberts will say and they should say it now’, however, would not release Ms Roberts from a confidentiality agreement.
Following legal argument, Mr Owens told the court that Nine anticipates calling evidence from Ms Roberts and Ms Scott about Mr Roberts-Smith’s alleged attempts to intimidate witnesses against giving truthful evidence, claims that he communicated covertly with witnesses and concealed material.
Ben Roberts-Smith has taken leave from Channel Seven amid his upcoming legal battle with rival Nine
Mr Roberts-Smith is suing Nine newspapers for defamation over articles accusing him of committing war crimes in Afghanistan
Mr McClintock said Mr Roberts-Smith is ‘anxious’ to get in the witness box – as the first witness – and ‘expose the lies’ made about him.
The war crimes allegations to be tested by the court include claims that the country’s best known soldier kicked a handcuffed Afghan farmer off a ‘small cliff’ before he was shot dead.
Mr Roberts-Smith vehemently denies the allegations. Mr Owens, for Nine, said the case will centre around the ‘truth or falsity’ of the allegations.
The court also heard argument about the order of witnesses given at the trial. The judge reserved his decision.
The trial begins in June and is expected to last at least two months, but possibly longer.
Mr Roberts-Smith has taken paid leave from his role as general manager of Channel Seven’s Queensland division for the duration of the trial.
Mr Roberts-Smith landed in strife a few weeks ago after he was recorded in leaked audio praising boss Kerry Stokes but disparaging other Seven West Media staff