WARNING – DISTRESSING CONTENT
The news outlets being sued by Ben Roberts-Smith have been called on to explain how they obtained material that alleges the former soldier kept Department of Defence drone videos of Afghanistan military operations buried in his backyard.
Former soldier Ben Roberts-Smith.Credit:Getty Images
Mr Roberts-Smith, a highly-decorated former SAS soldier, is suing The Age and The Sydney Morning Herald over reports he allegedly committed murder on deployments to Afghanistan and that he also allegedly punched his mistress in the face in Canberra in 2018.
The Victoria Cross recipient denies the allegations and says the reports are defamatory because they portray him as a criminal.
The media will defend the claim using a truth defence at a Federal Court trial set to start on June 7.
During an administrative hearing on Thursday, lawyers for Mr Roberts-Smith and the media engaged in a cryptic argument over who had possession of material that allegedly includes 13 videos of drone vision taken by NATO military forces in Afghanistan and copies of classified operational reports from an SAS mission in southern Afghanistan.
Ben Roberts-Smith and the prosthetic leg of a dead Taliban fighter.
The Age and The Sydney Morning Herald this month reported Mr Roberts-Smith kept the classified material on USB drives stored in a children’s lunchbox and buried in the backyard of his home on the Sunshine Coast hinterland.
The USBs also allegedly contained photographs of Australian and US soldiers using the prosthetic leg of a dead Taliban fighter as a drinking vessel at a 2012 fancy dress party at a coalition military base in southern Afghanistan. The party was held at an unauthorised military bar called the Fat Ladies Arms.
The prosthetic leg was taken as a souvenir from the body of the dead fighter in 2009 after he was allegedly killed by Mr Roberts-Smith. In one photograph taken at the 2012 party, Mr Roberts-Smith stands happily next to a colleague who drinks from the leg.
Besides the drone videos and the images from the party, another photograph shows another dead Afghan man – a suspected Taliban fighter – with his face smeared with blood and with Australian coins placed over his eyes and the boots of Australian soldiers in the frame.
A dead suspected Taliban fighter with Australian coins placed on his eyes.
Mr Roberts-Smith has denied he hid or failed to disclose the material to the military probe into the conduct of Australian soldiers in Afghanistan, and said he co-operated with the inquiry.
Sources have told The Age and The Sydney Morning Herald that the contents of the USBs allegedly buried in Mr Roberts-Smith’s backyard are now in the possession of federal police who are conducting war crimes investigations.
Arthur Moses, SC, acting for Mr Roberts-Smith at Thursday’s hearing, said the news outlets had material that should have been raised with the Commonwealth before it was published, “and no steps were taken to do that”.
Mr Moses said lawyers for the Commonwealth could ask for the material to be handed over or could seek “an explanation as to where they [the media] got it from”.
“Because that raises a serious concern in terms of potential unlawful conduct in respect of Commonwealth material that they’ve purported to publish,” the barrister said.
Lyndelle Barnett, acting for the publishers, said: “Our position is the material is in the possession of the applicant [Mr Roberts-Smith].”
Ms Barnett said the argument over the possession of the material stored on the USBs might be heard in another hearing scheduled for Friday.
Friday’s hearing is also set to focus on the media’s application to strengthen its defence ahead of the defamation trial.
At a hearing last month, Nicholas Owens, SC, said the news outlets had evidence of two more incidents of “very serious criminal conduct” on top of Mr Roberts-Smith’s alleged involvement in six unlawful killings as an Australian soldier in Afghanistan.
The news outlets outlined the fresh evidence and proposed amendment two weeks ago in a closed court, and Justice Anthony Besanko is yet to rule on whether to allow the amendment.
If you are a current or former ADF member, or a relative, and need counselling or support, contact the Defence All-Hours Support Line on 1800 628 036 or Open Arms on 1800 011 046.
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