Ben Roberts-Smith accused of making grave mistake
Ben Roberts-Smith has been accused of wiping a laptop that could have held critical evidence.
The Australian war hero is being accused as his courtroom showdown with Nine newspapers nears.
Mr Roberts-Smith is suing The Age and Sydney Morning Herald over a series of incorrect reports that aired allegations relating to his deployment in Afghanistan.
The highly decorated soldier has denied the allegations and is suing for defamation, claiming the reports falsely painted him as a war criminal.
Nine has said the network plans to vigorously defend the claim.
Lyndelle Barnett, barrister for the newspaper, told the Federal Court that Mr Roberts-Smith had wiped a laptop just days after he was issued a notice to produce it.
Mr Roberts-Smith’s lawyers have pushed back at the accusation however, saying there was nothing “sinister” in his actions.
They told the court he deleted the information while he was in the process of buying a new computer.
The court has also been told that the soldier buried a USB drive inside a pink children’s laptop in his backyard.
It is alleged that the USB contained classified documents and videos that could relate to alleged war crimes.
Mr Roberts-Smith removed the USB from his backyard in June last year, the court heard.
When Nine’s lawyers produced a notice for Mr Roberts-Smith to produce the external drives, they were told that the information had been transferred to a computer.
Ms Barnett told Justice Anthony Besanko late last week they had been informed that the computer had been wiped.
“We then sought the laptop with a view to it being examined by an expert and were told on Friday night that the applicant has wiped the hard drive of that laptop very recently, on the 17th of April,” Ms Barnett said.
“Nonetheless, we still press for production of the laptop.”
“(The laptop being wiped) did occur five days after we wrote to the applicant to retain documents associated with the USB,” Ms Barnett would go on to say.
“We are concerned about the hard drive having been wiped in those circumstances and (it is) something we wish to explore.”
Mr Roberts-Smith’s barrister Bruce McClintock retaliated, saying that there was nothing nefarious about the computer being wiped clean.
“There’s nothing sinister in what occurred,” Mr McClintock said.
“My client was in the course of buying a new computer and trading in the old one. That’s the reason for these events.”
He added that the USB was still in the possession of his instructing solicitor, adding that it could still be produced to Nine’s lawyers.
He also said he consented to the laptop being turned over and examined.
Barrister Joe Edwards said there would be sensitive information on the laptop’s hard drive and was working to have the matter resolved.
Ms Barnett said they were anxious to have it examined prior to Mr Roberts-Smith case taking the stand.
The newspaper articles that were published in 2018, had allegations that the former SAS corporal kicked a handcuffed Afghan civilian, Ali Jan, off a cliff in 2012.
Mr Roberts-Smith’s lawyers on Tuesday told the court that journalist Nick McKenzie had deleted a recorded interview he’d had with Mr Jan’s wife.
“There is a significant issue about the destruction of documents by the respondents,” Mr McClintock said.
“We have not been told when these documents were destroyed. And while I don’t like these things to be done in a half-baked way, I do want to take this matter further.”
Ms Barnett said the recordings which were made on an iPhone, were deleted months prior to the stories being published and before the defamation proceedings began.
“We reject entirely that there’s anything nefarious about these documents … being deleted,” Ms Barnett said.
“As I understand it, interviews with Ali Jan’s relatives were taken on an iPhone and sometimes videos might be started and stopped.
“You might have one short video with nothing relevant. And those were the kinds of videos which were deleted.”
The trial is scheduled to begin in Sydney on June 7.