Ben Roberts-Smith threatened to sue his estranged wife and tear up their family court settlement if she gave evidence against him in an upcoming defamation trial over war crimes allegations against him, the federal court has heard.
The former SAS soldier’s estranged wife, Emma Roberts, was expected to appear in defence of her husband but will instead testify for the Nine newspapers that Roberts-Smith had asked her to lie to the court.
The Victoria Cross winner is suing Fairfax newspapers (now owned by Nine) over a series of reports that alleged he committed war crimes while serving in Afghanistan, including killing seven unarmed civilians and disgracing the Australian army by repeatedly breaching the laws of war.
Nine is defending its reporting as true.
Lawyers for Roberts wrote to lawyers for Roberts-Smith seeking an assurance he would not, when she gave evidence, seek to invoke a breach of the confidentiality agreement the pair signed over the dissolution of their marriage.
But the former soldier replied threatening an injunction, or to sue his wife for damages and to abandon their family court property settlement if she gave evidence, Nicholas Owens, acting for Nine, told the court.
“We cannot, we do not waive the confidentiality agreement,” said Bruce McClintock, acting for Roberts-Smith.
In an exchange before justice Anthony Besanko, McClintock said if Roberts gave evidence against her former husband: “I’m going to have to cross-examine Ms Roberts, and I’m going to have to put to her that she’s a liar.”
He said “there are children involved” and that lawyers for the newspapers should “reconsider” calling her.
“Sometimes you can pay perhaps too high a price to air a family’s dirty linen. It’s a dangerous course, and in my submission, a tawdry one.”
Owens, for Fairfax, said: “That is frankly an outrageous submission … a scurrilous one and ought not to have been put.”
He foreshadowed that evidence given by Roberts would concern the alleged intimidation of witnesses, attempts to communicate covertly with witnesses, and the alleged concealment of material.
The court has previously heard that Roberts-Smith allegedly asked his wife to lie about an affair he had with another woman.
The federal court also heard on Thursday that Roberts-Smith had written to the attorney general saying he had more evidence to produce about his service in Afghanistan and the allegations of war crimes against him.
After media reports that Roberts-Smith had buried six USBs containing critical and confidential military documents, drone footage and photographs in a child’s lunchbox in his back yard, the former Special Air Service Regiment corporal was issued with a notice to produce evidence by the court.
He has responded to the attorney general, writing that he is in possession of further evidence but revealing it in open court would breach national security laws.
McClintock said the information Roberts-Smith had was a series of pictures of SAS soldiers drinking in the Fat Ladies Arms, an unofficial bar at the Australian military base. Revealing those photos, and potentially the identities of those soldiers, would be a breach of national security.
But Nine’s lawyers say they will present evidence before the court that the information held by Roberts-Smith, and not provided – as ordered – to the inspector general of the Australian defence force for its investigation, is relevant to the allegations of war crimes against him.
One file on one USB, the court was told, was named “JTAC SitRep Whiskey 108”.
Whiskey 108 was the codename of one of the key allegations of the defamation trial, the court heard – that Roberts-Smith murdered an unarmed civilian.
Thursday’s interlocutory hearing was largely concerned with the carriage of the trial, including the testimony and evidence to be heard, and the order of witnesses.
Dame Quentin Bryce, the former governor general who pinned Roberts-Smith’s VC to his chest on the Queen’s behalf in 2011, will give character evidence in support of Roberts-Smith, the court was told last week.
Four Afghan citizens from the village of Darwan, where Roberts-Smith is alleged to have murdered an unarmed, handcuffed farmer named Ali Jan in 2012, will give evidence by video link from Kabul.
According to a preliminary court judgment, a nephew of Ali Jan will give evidence that he had seen Roberts-Smith kick the handcuffed man off a cliff before ordering another soldier to shoot him.
Another witness will allege “he saw a big soldier kick Ali Jan off a cliff”.
“He claims that a short time later he heard gunshots. He claims that he saw Ali Jan’s dead body with a gunshot wound to the face.”
Roberts-Smith has consistently denied what he says are “false allegations” against him, which are “completely without any foundation in truth”. He will be among the first witnesses called.
“My client wants to get in the witness box and expose the lies that have been told about him,” McClintock said.
The lawyer said Roberts-Smith would deny allegations he had committed war crimes or any other offences, and that there had been a “whole series of allegations and other rubbish about lunchboxes and USBs” aired in the media.
“He looks forward to getting in the witness box and rebutting every one of them.”
