Ben Roberts-Smith’s ex-wife and a family friend dug up six USB storage sticks, buried in a child’s lunchbox in the Roberts-Smith’s family back yard, before handing the classified files to police, the former soldier’s defamation hearing has been told.
Included on the USBs was classified information including operational reports from SAS missions in southern Afghanistan, drone footage of military operations and classified photographs.
The issue of the USBs – and their alleged burial in the back yard – are key elements of allegations that Roberts-Smith, a Victoria Cross recipient, deliberately withheld information from an investigation by the inspector general of the Australian defence force into alleged war crimes by Australian soldiers.
Included on the USBs is a file named “JTAC SitRep Whiskey 108”.
Whiskey 108 was the codename of the site of one of the key allegations of Roberts-Smith’s defamation trial against three newspapers: the compound where he is alleged to have murdered an unarmed civilian.
Also on the USBs are hundreds of photos of SAS soldiers drinking in the Fat Ladies Arms, an unofficial bar at the Australian military base in Afghanistan, including photos of troops drinking from a prosthetic leg taken from a slain Afghan national allegedly killed by Roberts-Smith.
There are also files named ‘Stilleto Quiz Night’, ‘Battle for Gizab’, ‘Sth Tizak’ – Tizak was the action for which Roberts-Smith was awarded his VC – and files referring to ISAF missions, marked Secret, and videos purporting to show ‘captures’ made in Afghanistan.
Roberts-Smith denies ever burying the USBs in his back yard or withholding information from the war crimes inquiry.
But he has conceded in court he unlawfully held classified material. He has not been charged over that unlawful possession.
Hundreds of pages of court documents were released on Friday. One of the affidavits released by the court states that, in 2020, Roberts-Smith’s estranged wife, Emma Roberts, told a family friend, Danielle Scott, she suspected the former SAS soldier “had buried something in the back yard”.
The pair searched the yard and, digging under a rock underneath a hose reel, “about 10-15cm down they found a lunchbox which contained six USBs that had been placed in a plastic snap lock bag”.
“Ms Scott copied the contents of the USBs onto her computer,” the affidavit said. “Ms Scott and Ms Roberts placed the USBs back in the bag and the lunchbox and reburied it. Ms Scott was contacted by the Australian Federal Police and she provided a copy of the contents of the USBs to them.”
In earlier evidence before court, Roberts-Smith said he was anonymously sent a number of USBs containing pictures, video and classified reports from his service in Afghanistan after he asked former colleagues for information that could help his defamation action against three newspapers he alleges defamed him by accusing him of war crimes.
Roberts-Smith said he never buried the USBs, but that they were kept in his desk at the home he had shared with his wife.
He conceded in court he knew that at least some of the material on the USBs “was classified ‘secret’ commonwealth material”.
He said he understood he was not authorised to keep secret classified information at his home, but that he did not know it was a criminal offence.
“I didn’t think it was a criminal offence. I thought it might have been an issue with defence, as in, against regulations, I accept that. I didn’t realise it was a criminal offence.”
Roberts-Smith said there was no risk to national security.
“I believe it’s a wrong thing to do. I accept that. To suggest it was putting our national security at jeopardy is completely false.”
In response to media reportage in May, a statement issued on Roberts-Smiths’ behalf denied the allegations he buried evidence in his back yard.
“The allegations that he ‘hid’ or failed to disclose material to the inspector general of the ADF during the Afghanistan inquiry is false,” the statement said. “Mr Roberts-Smith fully cooperated with the Afghanistan inquiry.
“The allegations he buried USBs in his backyard is false. This simply did not happen.”
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports published in 2018. He alleges the reports are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes, including six allegations of murder.
The 42-year-old has consistently denied the allegations, saying they are “false”, “baseless” and “completely without any foundation in truth”. The newspapers are defending their reporting as true.
Earlier this month, the trial heard evidence from three witnesses from the Afghan village of Darwan, site of a key allegation of murder against Roberts-Smith.
Included in the mass release of court documents on Friday were details of a confrontation between Roberts-Smith’s girlfriend, anonymised in court documents as Person 17, and his wife, when Person 17 arrived unannounced at the Roberts-Smith family home in April 2018.
Person 17 had a black eye at the time, and told Emma Roberts she had fallen down the stairs at parliament house. One of the allegations against Roberts-Smith, is that he punched Person 17 during an argument in a hotel room. He denies this.
The trial has since been adjourned until at least 1 November, because Sydney’s Covid-19 lockdowns have obstructed interstate and international witnesses coming to court to give evidence.
