A woman who was having an affair with Ben Roberts-Smith sent a text message to the war hero saying she felt ‘awful’ after a drunken fall down stairs at Parliament House, and only made allegations of assault after he ended their relationship.
The woman, codenamed Person 17, attended a function hosted by then prime minister Malcolm Turnbull at Parliament House with Mr Roberts-Smith, with whom she was having an affair, on March 28, 2018.
The Federal Court has heard she became so intoxicated at the function she fell down a set of stairs leading to an underground car park and suffered seriously injuries to her face.
Barrister Bruce McClintock SC for Mr Roberts-Smith told his defamation trial on Thursday that the woman made no allegation of assault against his client until after he ended their relationship.
Mr McClintock said that within a week of Person 17 sustaining the injuries, she went to Roberts-Smith’s wife and told her about the affair.
Mr Roberts-Smith served six operational tours in Afghanistan with the elite Special Air Service and left the regular army in 2013 with the rank of corporal. He is pictured arriving at court on Wednesday
Mr Roberts-Smith is pictured shaking hands with the Queen at Buckingham Palace at a reception for the Victoria Cross and George Cross Association in 2018
Nine newspapers published a story claiming Mr Roberts-Smith argued with the woman after the function and was angry with her out of fear she had exposed their affair.
The papers claim that in response to Person 17 saying, ‘my head hurts’, Mr Roberts-Smith had said, ‘It’s going to hurt more’ or ‘I’ll show you what hurt is’ and punched her in the left eye.
Nicholas Owens SC for Nine newspapers told the court that the day after the incident Mr Roberts-Smith and Person 17 exchanged text messages about what had occurred.
She had written: ‘I feel awful. I made a doctor’s appointment for this afternoon after speaking to [her husband] and sent him a photo.’
Mr Roberts-Smith allegedly replied: ‘Does he think I did it?
Person 17: ‘Yeah, he did to begin with and he didn’t believe I had fallen down stairs. I just told him what we talked about.
She had also said: ‘I’ve got some other bruises including a massive one on my thigh on the same side of my body which will hopefully make the falling story more believable.’
Nicholas Owens SC for Nine newspapers told the court that the day after the incident Mr Roberts-Smith and his mistress codenamed Person 17 exchanged text messages about what had occurred
Mr Roberts-Smith with his new girlfriend Sarah Matulin attended the Magic Millions together on the Queensland Gold Coast in January this year
Mr Roberts-Smith allegedly replied: ‘OK well hopefully he believes you.’
Earlier in the day, Roberts-Smith told the court his heart was broken when he was publicly accused of war crimes while serving with the SAS in Afghanistan.
Roberts-Smith began his evidence in his defamation action by telling the Federal Court how it felt to be accused of murdering six Afghanis.
‘I spent my life fighting for my country and I did everything I possibly could to ensure I did it with honour,’ he told the court.
‘I listened to that and I really cannot comprehend how people, on the basis of rumour and innuendo, can maintain that in a public forum. It breaks my heart actually.
Asked by barrister Bruce McClintock SC how it felt to be specifically accused of murder, Mr Roberts-Smith said, ‘It’s devastating quite frankly.’
Mr Roberts-Smith’s evidence followed a brief opening statement by Nicholas Owens SC on behalf of the newspapers.
Mr Owens said Nine newspapers would call 21 serving and former SAS soldiers to give evidence against their former comrade.
He wanted to outline the core of the case so there could be no misconception about Nine’s position.
Mr Owens said none of the six murders Nine alleged Mr Roberts-Smith committed were the result of decisions made in the heat of battle or ‘the fog of war’.
‘None of these six murders involved judgement calls,’ he told the court. None of the killings came about due to confusion over whether someone was an insurgent or civilian.
Mr Roberts-Smith, pictured with his barrister Arthur Moses SC, told the court on Thursday his ‘heart was broken’ when he was publicly accused of war crimes while serving with the SAS in Afghanistan
Mr Roberts-Smith’s ex-wife Emma has ‘flipped’ and is giving evidence for Nine Entertainment. The former couple is pictured together at a reception to celebrate military and civilian heroes in London in 2012
Mr Owens said each of the alleged murders involved the killing of Afghans in custody and were breaches of the Geneva Conventions which govern the rules of war.
‘The rules of engagement under which Australian troops operated in Afghanistan were and indeed had to be consistent with the Geneva Conventions.
‘And under the Geneva Conventions once a person has been placed under control, no matter that he may be without a shadow of a doubt the most brutal… member of the Taliban, an Australian soldier cannot kill him.’
Most of those allegedly shot dead were ‘almost certainly insurgents’ and they were killed because they were thought to be Taliban.
Mr Owens told Justice Anthony Besanko he would be presented with a ‘stark choice’. Either prisoners had been executed by Mr Roberts-Smith, or they had died in battlefield encounters.
Mr Roberts-Smith had created ‘false narratives’ about the deaths of the six Afghanis and his version of events could not be reconciled with those of other soldiers.
Written battlefield accounts which Mr Roberts-Smith’s lawyers say support his versions of killings contained deliberate lies to cover up murders, according to Nine.
Mr Owens said he would call the 21 serving and former SAS soldiers who would give evidence conflicting with what Mr Roberts-Smith would tell the court.
‘The suggestion that the testimony of 21 men is a fabrication as a result of jealousy and trauma is inherently implausible,’ Mr Owens said.
Some of those soldiers would themselves admit to war crimes including taking part in murders and were ‘honourable men who could stay silent no longer’.
Mr Owens said in many cases those witnesses had not spoken to each other about what happened in Afghanistan and for them to have conspired to bring Mr Roberts-Smith down was impossible.
Afghan villagers would also give evidence consistent with the soldiers being called by Nine.
Nine executive editor of Australian metro publishing James Chessell (left) and editor of The Sydney Morning Herald, Lisa Davies (right) arrive at the court on Monday
‘It will be our case that each of Mr Roberts-Smith’s accounts are inherently implausible from a military perspective and inconsistent with objective facts,’ Mr Owens told the court.
Further, Mr Owens said, Mr Roberts-Smith had over years tried to undermine Nine’s evidence by attempting to influence witnesses via emails and telephone calls.
Mr Roberts-Smith is suing Nine-owned newspapers The Sydney Morning Herald and The Age, plus The Canberra Times over allegations he committed battlefield crimes including murder.
His case is being bankrolled by his employer, the Seven Network’s billionaire owner Kerry Stokes.
The former soldier has taken leave as general manager of Seven’s Queensland operations for the duration of the hearing.
Mr Roberts-Smith served six operational tours in Afghanistan with the elite Special Air Service and left the regular army in 2013 with the rank of corporal.
He was awarded the country’s top military honour for ‘selfless actions in circumstances of great peril’ while hunting a senior Taliban commander at Tizak in June 2010.
Australia’s most decorated soldier Ben Roberts-Smith is suing three newspapers and three journalists he says destroyed his reputation as a war hero. Mr Roberts-Smith is pictured on Wednesday arriving at the Federal Court
Mr Roberts-Smith has taken leave as boss of the Seven Network’s Queensland operations for the duration of the hearing. His case is being bankrolled by Seven’s owner, billionaire Kerry Stokes (pictured with wife Christine)
Mr Roberts-Smith had drawn enemy fire away from pinned-down members of his patrol, stormed two enemy machinegun posts and silenced them.
He had previously been awarded the Medal for Gallantry for his actions as a patrol scout and sniper near the Chora Pass in May 2006.
In his lawsuit, Mr Roberts-Smith alleges the newspapers and journalists Nick McKenzie, Chris Masters and David Wroe defamed him in what was then the Fairfax press in 2018.
Among his claims is that the publications wrongly made out that he ‘broke the moral and legal rules of military engagement and is therefore a criminal.’
Mr Roberts-Smith says the newspapers falsely implied his alleged conduct had disgraced his country and the army.
Nine Entertainment Co, the media giant which now owns the Herald and Age, is defending their journalists’ claims on the basis the allegations are true.
The newspapers will plead that Mr Roberts-Smith was complicit in and responsible for the murders of six people in Afghanistan, and that those alleged actions constituted war crimes.
Mr Roberts-Smith is the first witness of an expected 60 to be called at what is estimated to be a ten-week trial.
The court has already heard Mr Roberts-Smith lost $475,000 in earnings from public speaking engagements after he was accused of war crimes and domestic violence.
Ben Roberts-Smith will spend the next two months in room 18D at the Law Courts Building in the central business district defending himself against claims he is a war criminal
In his lawsuit, Mr Roberts-Smith alleges Nine’s newspapers and its journalists Nick McKenzie (pictured), David Wroe and Chris Masters defamed him in the then Fairfax press in 2018
Mr McClintock said the effect of those stories had been to ‘smash and destroy’ Mr Roberts-Smith’s previously exalted reputation.
‘In 2018… there could not have been a former soldier better known or more highly respected than my client,’ Mr McClintock told the court.
Mr Roberts-Smith would be seeking aggravated damages because according to Mr McClintock, the publisher knew some of their claims to be false.
The stories had been presented in a ‘sensational’ manner, included ‘unjustifiable allegations of murder’ and had not been withdrawn.
Whereas Mr Roberts-Smith was once much in demand as a speaker, after the stories were published even invitations to Anzac Day ceremonies stopped.
The former soldier had also been offered a partnership in a big accounting firm on a salary higher than he was earning with Seven West Media.
Mr McClintock said it was ‘not a competition’ to set records for damages payouts but his client would need a sufficient amount to be compensated for the loss of his reputation and hurt.
‘The more serious the attack the greater the amount of money that’s necessary to vindicate,’ Mr McClintock said.
He said an accountant would estimate Mr Roberts-Smith had lost $475,000 from speaking engagements alone.
Mr McClintock also confirmed former governor-general Dame Quentin Bryce, who had presented Mr Roberts-Smith with his VC, would not be giving character evidence on his behalf ‘for personal reasons’ but had never withdrawn her support.
Mr McClintock told the court on Monday his client had been the victim of jealous former comrades who falsely accused him of committing war crimes.
Mr Roberts-Smith was awarded the Victoria Cross for ‘selfless’ actions in Afghanistan and will now fight for his reputation in the Federal Court, claiming he was smeared by media giant Nine Entertainment
The parents of Mr Roberts-Smith, Len and Sue Roberts-Smith depart the Federal Court, hours after claiming the allegations against their son ruined their lives
The former soldier has taken leave as general manager of Seven’s Queensland operations for the duration of the hearing
‘This is a case about courage, devotion to duty, self-sacrifice and perhaps most important of all, surpassing skill in soldiering,’ Mr McClintock told Justice Anthony Besanko.
‘On the other hand, your Honour, it’s a case about dishonest journalism, corrosive jealousy, cowardice and lies.
‘It’s also about how a man with a deservedly high reputation for courage, skill and decency… had that reputation destroyed by bitter people jealous of his courage and success as a solider, particularly his Victoria Cross, aided by credulous journalists.’
Mr McClintock argued Mr Roberts-Smith and his comrades-in-arms were sent to kill in Afghanistan and their Taliban insurgent enemy did not wear uniforms. Decisions in the heat of battle had to be made without the benefit of hindsight.
‘Perspective is everything,’ Mr McClintock told the court. ‘Battle is not like a computer game when you restart the game and get your lives back.’
Mr McClintock said the former soldiers who made claims against Mr Roberts-Smith had not spoken up until years after the events they now complained about.
He suggested some of their claims were made out of jealousy over Mr Roberts-Smith’s medals for gallantry and their own failures as soldiers.
Mr McClintock said one false allegation Mr Roberts-Smith murdered an Afghani, which was recently withdrawn by Nine, should lead to aggravated damages.
During his fifth tour of duty in Afghanistan, Mr Roberts-Smith (pictured) drew enemy fire away from pinned-down members of his patrol, stormed two enemy machine-gun posts and silenced them
Mr Roberts-Smith is pictured with the prosthetic leg of a fallen Afghani that was kept at the SAS base and used as a drinking vessel. Mr McClintock said this might seem in bad taste, ‘but in the scheme of human wickedness it does not rate very high.’ Mr Roberts-Smiths denies ever drinking from the leg
Mr McClintock said the jealousy towards his client escalated after he was awarded the Victoria Cross, when he became famous outside military circles.
The court heard that on Mr Roberts-Smith’s last deployment to Afghanistan in 2012 he would find messages such as ‘BRS is after another medal’ on a noticeboard at the Australians’ headquarters.
Mr McClintock said by 2012 the workload Mr Roberts-Smith endured was ‘almost inhumane’ but he coped better with repeated deployments than many of his colleagues.
After Mr Roberts-Smith left the army, completed a MBA and had business success, the ‘poisonous campaign’ of envy against him increased.
‘Some might call it the tall poppy syndrome,’ Mr McClintock said. ‘Others might just call it jealousy.’
‘I’m feeling good mate, looking forward to finally setting the record straight,’ Mr Roberts-Smith told Daily Mail Australia ahead of the hearing
Former governor-general Dame Quentin Bryce pinned Mr Roberts-Smith’s Victoria Cross to his chest (pictured) and was expected to give a character reference at trial, however reports have claimed she has withdrawn
After Mr Roberts-Smith gives evidence he will face what is likely to be a week of cross-examination by lawyers for Nine.
Character witnesses will then testify on his behalf, followed by witnesses for Nine.
Mr Robert-Smith’s ex-wife Emma Roberts, the mother of his two children, is expected to give evidence for the publisher after ‘flipping’ sides.
Ms Roberts’ friend Danielle Scott, John McLeod – a former bodyguard of drug smuggler Schapelle Corby – alleged Afghani eye-witnesses and a handful of soldiers will also be called by Nine in the main trial.
Then Mr Roberts-Smith’s team will call evidence from his other witnesses, understood to include former SAS comrades.
Among Mr Roberts-Smith’s claims is that the Nine Entertainment publications wrongly made out that he ‘broke the moral and legal rules of military engagement and is therefore a criminal.’ Mr Roberts-Smith is pictured in Afghanistan
Mr Roberts-Smith is also suing his ex-wife Emma Roberts, claiming she broke into his email account. She is pictured outside her Brisbane home on Friday