The defamation trial of Ben Roberts-Smith has been hit with a series of dramatic twists; one SAS witness is backing away from giving evidence against the celebrated soldier, another may do the same, while a third has been unmasked as a source for Nine‘s journalists.
Meanwhile the Federal Court has released a trove of documents that expose the inner workings of Mr Roberts-Smith‘s intensely private “affair” and images of his injured ”mistress” which could decide crucial parts of the case.
Mr Roberts-Smith is suing Nine newspapers claiming they falsely accused him of war crime killings in Afghanistan when he was deployed in the SAS.
He is also suing the newspapers, and journalists Chris Masters and Nick McKenzie, over accusations he abused a woman known as Person 17 during a clandestine relationship.
Nine stands by the stories, saying the allegations are true, and opened its case against Mr Roberts-Smith by calling SAS soldiers to testify against him in the Federal Court.
The court is expecting to hear from multiple members of the SAS throughout the coming weeks including two soldiers known only as Person 56 and Person 66.
Nine‘s barrister Nicholas Owens SC, on Wednesday, told the court he believed Mr Roberts-Smith’s legal team had contacted two high profile lawyers – Philip Boulten SC and Peter Hodges.
In that contact, Nine claims, Mr Moses “expressed” that the interests of Person 56 and Person 66 may not be ”properly protected” when they are called to give evidence against Mr Roberts-Smith.
The identities of the SAS witnesses are closely guarded secrets known only to their lawyers and others closely involved in the defamation trial.
Nine claims Mr Boulten and Mr Hodges “through means unknown” were put in contact with Person 56.
Person 56 is now seeking to withdraw from giving evidence, Nine told the court.
Mr Owens claims the two lawyers will meet with Person 66 later on Wednesday and is expected to give evidence on Friday.
Person 66 has not made any application for that plan to change, the court heard.
Mr Boulten and Mr Hodges are not accused of any wrongdoing
According to court documents, Nine alleges Mr Roberts-Smith stood behind Person 66 and ordered him to execute one of two Afghan prisoners in a field in Syahchow in October 2012.
Former SAS soldier and Liberal MP Andrew Hastie was deployed during that mission, the court documents state, and is expected to testify for Nine saying he saw Person 66 looking anxious after the mission.
Mr Roberts-Smith denies that allegation entirely.
Person 56, the court previously heard, is expected to give evidence about Nine‘s “centrepiece” murder accusation where Mr Roberts-Smith is alleged to have kicked an unarmed shepherd named Ali Jan down a ”cliff”.
That shepherd was allegedly then shot dead by another soldier while lying injured in the dry creek bed below.
Mr Roberts-Smith denies that allegation as well – saying he shot dead a spotter in a cornfield during that 2012 mission within the rules of engagement.
The court has previously heard claims from Mr Roberts-Smith that Nine had done “a deal” with Person 56 that he would only have to give evidence about that single mission.
On Wednesday Justice Anthony Besanko agreed Nine could issue subpoenas to Mr Boulten and Mr Hodges and another notice to Mr Roberts-Smith‘s lawyers to overturn their communications relating to Persons 56 and 66.
Nine‘s main witness this week, an SAS soldier known as Person 14, has accused Mr Roberts-Smith of ordering the execution of another unarmed Afghan in 2012.
The court had ruled Person 14 would not have to answer questions from Mr Roberts-Smith‘s lawyers about whether he had spoken or met with Nine’s journalists.
But Justice Besanko, on Wednesday, reversed the decision and ordered Person 14 to answer the questions.
Person 14 told the court he had met and spoken with Mr Masters about rumours in the SAS involving Mr Roberts-Smith and a major raid in 2009 known as Whiskey 108.
Nine would later accuse Mr Roberts-Smith of ordering the execution of one Afghan prisoner to “blood the rookie” in his SAS unit and further accuse him of machine gunning another captive during that raid.
Mr Roberts-Smith denies that allegation and has told the court the man he shot dead had been armed and was killed under the lawful rules of engagement.
As Person 14 gave evidence the Federal Court released dozens of documents that had been entered into evidence in June 2021.
The documents contain marriage counselling notes between Mr Roberts-Smith and his now ex wife Emma Roberts, medical records, emails and text messages.
Some of those messages are between Mr Roberts-Smith and a married woman known as Person 17.
The court has previously heard the pair had been dating and had a volatile relationship – Mr Roberts-Smith maintains he dated Person 17 while separated from his wife.
Person 17, the court has heard, had hired a car and driven to Mr Roberts-Smith‘s marital home to expose their relationship in April 2018.
The text messages, released on Wednesday, show Mr Roberts-Smith accusing the woman of “outright blackmail” in the hours after she confronted his then wife.
“Please don‘t waste your time with intimidation or payback,” Person 17 wrote to Mr Roberts-Smith, the texts show.
“The benefit of seeing what you are capable of a few weeks back & knowing the threats you‘ve made to me since is that I immediately put in place ’insurance’ in the event that anything should happen to me or my family.”
Mr Roberts-Smith has steadfastly denied he ever threatened Person 17 and told the court she had lied on multiple occasions – his lawyers describe her as a “fabulist”.
Person 17 is expected to testify, for Nine, that Mr Roberts-Smith struck her after she got drunk at a swanky party one month earlier, in Canberra in 2018.
Mr Roberts-Smith totally denies that saying Person 17 fell down the stairs while leaving the venue and ended up with a black eye.
He told the court he stayed up all night tending to the injured and intoxicated woman at the Hotel Realm and photographed her injury.
The documents, released on Wednesday, contain an email chain where Nine‘s lawyers request those images.
The images, with Person 17‘s face covered by a black box, appear to show a woman in bed.
The lawyers for Mr Roberts-Smith, in the emails, tell Nine‘s lawyers that the original images were deleted and all that remain are screenshots.
“Unbeknownst to (Mr Roberts-Smith), at some point his former wife, while searching his belongings and mobile phone, had taken photos of the images of Person 17,” Mr Roberts-Smith‘s lawyer wrote in the March 2021 email.
Mr Boulten and Mr Hodges have been contacted for comment.
