Ben Roberts-Smith has lost a legal bid to have his ex-wife questioned under oath about confidential information he suspected she had accessed from his private email account.
The Victoria Cross recipient, who has been accused of war crimes by Nine newspapers, had sought to show Ms Roberts hacked into his emails herself or provided access to her lifelong friend Danielle Scott.
Mr Roberts-Smith’s lawyers had alleged in the Federal Court that Ms Roberts logged into his private RS Group email account more than 100 times.
Telstra records showed Ms Scott or her husband Darren Pill were the users of a BigPond email account allegedly used to access Mr Roberts-Smith’s correspondence.
Ben Roberts-Smith sued ex-wife Emma Roberts over claims she illegally accessed his emails. She denied hacking into his account or giving a password to her best friend. The former couple is pictured together at Buckingham Palace in 2011
Justice Robert Bromwich said on Friday that Mr Roberts-Smith had claimed his ex-wife Emma Roberts accessed his RS Group email account, then passed on information for use in his war crimes defamation case against Nine newspapers
Mr Roberts-Smith has given evidence he separated from his wife in September 2017 and began a six-month affair. Ms Roberts is expected to deny there was a separation or having knowledge of the affair until it was over. She is pictured near her Brisbane home
Mr Roberts-Smith took legal action against Ms Roberts on the eve of his defamation trial against Nine newspapers in June last year and the case was determined on Friday.
The former Special Air Service corporal is suing Nine for accusing him of complicity in six murders while serving with the Special Air Service in Afghanistan.
His lawyers alleged Ms Roberts accessed an email account he used for confidential correspondence about his defamation case and a war crimes inquiry by the Inspector-General of the Australian Defence Force.
Justice Robert Bromwich found against Mr Roberts-Smith on Friday.
Danielle Scott is Emma Roberts’s best friend and is set to give evidence against Ben Roberts-Smith. The Federal Court heard an account used by Ms Scott and husband Darren Pill (both pictured) had accessed Mr Roberts-Smith’s email account 101 times
The judge said Mr Roberts-Smith failed to prove a ‘sufficient basis’ to examine Ms Roberts over her delivery to the court of any information obtained from the RS Group email account.
Justice Bromwich said there were also insufficient grounds to join Ms Scott and her husband Darren Pill to the action.
Ms Scott, like Ms Roberts, is set to testify for the newspapers against Mr Roberts-Smith in the defamation trial.
The judge said, in his view, Mr Roberts-Smith’s case failed to go beyond ‘bare possibilities and suspicions, with many such assertions in relation to Ms Roberts being shown to be ill-founded.’
The claims against Ms Scott were ‘equally ill-founded’.
‘Both Mr Roberts-Smith’s interlocutory application for the examination of Ms Roberts, and his interlocutory application to join Ms Scott and her husband must be dismissed,’ Justice Bromwich ruled.
Mr Roberts-Smith is pictured being greeted by the Queen during an audience at Buckingham Palace in 2011. The soldier was awarded the Victoria Cross for actions in Afghanistan in 2006
The emails contained potentially privileged material, and Mr Roberts-Smith’s lawyers claimed Ms Roberts might have shared some of that information with Nine.
Arthur Moses SC, for Mr Roberts-Smith, had told the court such action could ‘contaminate’ the defamation hearing.
He further alleged Ms Roberts lied in affidavits sworn in response to evidence she hacked into her ex-husband’s private account.
Ms Scott or Mr Pill’s digital identity had been used to access the RS Group’s password-protected account at least 101 times between January 20, 2020 and May 7, 2021, Mr Moses said.
The barrister had applied to have Ms Scott and Mr Pill joined as parties to the lawsuit.
Mr Moses wanted to establish how Ms Scott or Mr Pill were allegedly able to access the password to his client’s account, whether they accessed his emails and for what purpose, and whether they passed on any emails to a third party.
Mr Roberts-Smith took legal action against his ex-wife on the eve of his defamation ‘trial of the century’ against Nine newspapers in June last year. The former couple is pictured with their twin daughters
While no criminal wrongdoing had been identified, Mr Moses said ‘nothing would be more calculated to bring the administration of justice into disrepute’ than for an outside party to have accessed Mr Roberts-Smith’s private email account.
Ms Roberts was ordered to tell the court how she had allegedly obtained information from Mr Roberts-Smith’s emails and whether it was by herself or ‘agents’ including Ms Scott.
She initially claimed she had never accessed Mr Roberts-Smith’s emails but changed her evidence in a third affidavit and still denies she provided a password to Ms Scott.
‘[Ms Roberts] has been caught out lying on the objective evidence,’ Mr Moses told the court on September 8.
The barrister said Telstra records showed Ms Scott had logged on and accessed the email account at least 101 times.
Ben Roberts-Smith has taken leave from his job as general manager of Network Seven in Queensland. He is pictured with girlfriend Sarah Matulin on the Gold Coast in January last year
Ms Roberts swore in a third affidavit she accessed her ex-husband’s RS Group email on April 5, 2020 but Mr Moses said Telstra records showed she had not.
‘The only person who had access to the RS Group email account on the fifth of April was an email address which is associated with Ms Danielle Scott or her husband,’ Mr Moses said.
Ms Roberts did not provide any affidavit from herself or Ms Scott to explain how or why the email account had been accessed more than 100 times since last year.
Mr Moses had said in August there was ‘clear, albeit circumstantial evidence’ Ms Roberts had not been ‘full and frank in her disclosure’.
He had also referred to WhatsApp messages in which Ms Roberts and Ms Scott talked about a book Mr Roberts-Smith had been writing which was stored on the RS Group email account.
‘I have the first four chapters of the book, the one that doesn’t exist,’ Ms Roberts texted Ms Scott. ‘He’s a dumb lying c*** and when Jason tables this he’s going to look like a dumb c***.’
Arthur Moses SC, for Mr Roberts-Smith, has said there was ‘clear, albeit circumstantial evidence’ Ms Roberts had not been ‘full and frank in her disclosure’ to the Federal Court
Lawyer Jason Murakami, for Ms Roberts, insisted his client had ‘completely complied’ with all questions about the email account and ‘appropriately and truthfully answered all allegations to the court’.
In September he said it was ‘pure speculation’ that Ms Roberts had given Ms Scott a password to access the email account.
Mr Roberts-Smith left Ms Roberts in January 2020 and the former couple sold their home on Queensland’s Sunshine Coast for more than $2million in December that year.
They settled their divorce in February last year and she gave a statement to Nine a month later outlining the evidence she would give against him.
The couple had rocky periods before they parted, with Mr Roberts-Smith admitting having an affair with a woman known in the defamation trial as Person 17 from October 2017 until April the following year.
Mr Roberts-Smith has given evidence he separated from his wife in September 2017 but they eventually reconciled. Ms Roberts is expected to deny there was a separation or having knowledge of the affair until it was over.
The defamation trial is due to resume on February 2 but may be delayed again due to the closure of Western Australia’s border.
The defamation trial is due to resume on February 2 but may be delayed again due to the closure of Western Australia’s border. Mr Roberts-Smith is pictured with his ex-wife