The Twisted Affairs of the Australian Soldier Accused of War Crimes in Afghanistan

Suggestions of unethical conduct, including an undisclosed conflict of interest, have delayed the defamation case brought by a former Australian soldier against three newspapers.

Former soldier Ben Roberts-Smith’s claim that the Age, the Sydney Morning Herald and the Canberra Times made defamatory imputations that he engaged in war crimes in Afghanistan has been delayed over concerns he may have been in an intimate relationship with a member of his legal team who swore a ‘crucial affidavit’ on his behalf.

Federal Court Justice Robert Bromwich said he was ‘uncomfortable’ with the possibility that an important affidavit by an intimate partner was tendered in court for Mr Roberts-Smith, in circumstances where the relationship was not disclosed.

“It’s a potentially delicate thing, but if the relationship is anything other than a purely professional relationship, I want to know why that wasn’t disclosed”, the Justice remarked.

Alleged undisclosed relationship

The identity of the lawyer in question remains undisclosed, but media reports suggest Mr Roberts-Smith has previously been linked to lawyer Monica Allen.

The pair have indeed been photographed holding hands, and the Australian Financial Review recently reported that Mr Roberts-Smith was seen returning to her apartment in running gear.

In August 2020, when the alleged relationship was first reported, Ms Allen’s employer Mark O’Brien said he had spoken with his employee about the matter, and that they agreed it was ‘unwise’ for the pair to spend time together on a social basis.

Intimate relationships between lawyers and clients

In New South Wales, it is not necessarily unethical for a lawyer to have an intimate relationship with a client.

While Mr Roberts-Smith’s legal team submitted to court that “the applicant (Ben Roberts-Smith) and the deponent (Allen) are not in a relationship. Full stop,” it has certainly complicated the proceedings against his former wife.

Simultaneous cases

Mr Roberts-Smith is suing the newspapers for defamation over a series of reports published in 2018 which allege he committed war crimes in Afghanistan, including six murders at five separate locations, as well as bullied other soldiers and committed an act of domestic violence in Australia.

At the same time, Mr Roberts-Smith is suing his former wife Emma Roberts on the basis that she allegedly unlawfully accessed his emails, which he says contained legally privileged, or national security-sensitive information, which may have “contaminated” the defamation proceedings.

His legal team has submitted in court that Ms Roberts had access to her former husband’s emails, including correspondences with his lawyers concerning the defamation proceedings, as well as the Afghanistan inquiry conducted by the Inspector General of the Australian Defence Force.

Mr Robert-Smith’s legal action seeks to ascertain the information Ms Roberts accessed from her husband’s email account and any persons with whom the information was shared.

Mr Roberts-Smith’s lawyers say they were alerted to the potential access when the newspapers defending the defamation claim sent notices to produce material that could have come from the emails.

Ms Roberts produced documents to the Federal Court’s Brisbane registry which were “safe-handed” to Sydney, and will be first handed to the Federal Government’s lawyers, due to concerns they may include national security-sensitive information.

Mr Roberts-Smith’s lawyers have told the court it breaks their client’s heart to be publicly accused of multiple murders after spending his life fighting for his country.

They say the reports are based on “rumour and innuendo.”

Defences to defamation

The newspapers defending the defamation claim are relying on the defence of truth.

Part 4, Division 2 of the Defamation Act lists the statutory defences, which are additional to any others available under the law.

Under this section, the defence of ‘truth’ is outlined as:

1. Justification

Section 25 of the Act states that ‘[i]t is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

2. Contextual truth

Section 26 provides a defence where the defendant proves that:

1. the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (“contextual imputations”) that are substantially true, and
2. the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

3. Absolute privilege

The defence of absolute privilege may also be available to the newspapers, depending on whether the published material had already been published in the court of certain other proceedings.

In that regard, section 27 sets out the defence of absolute privilege, which relates to material published in the course of the proceedings of a parliamentary body, including (but not limited to):

• documents by order, or under the authority, of the body, and
• debates and proceedings of the body by or under the authority of the body or any law, and
• evidence before the body, and
• presentations or submissions of documents to the body.

The defence also extends material published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to):

• documents filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and
• evidence before the court or tribunal, and
• any judgment, order or other determination of the court or tribunal.

The defence further extends to material which would attract absolute privilege in another Australian jurisdiction.