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A series of secret emails and messages sent between Ben Roberts-Smith and Seven Network executives should be blocked from release because of fears they could prejudice an investigation by war crimes investigators into the former soldier, a court has heard.
The disgraced former SAS corporal’s legal team has sought to stop the Commonwealth from accessing the documents because there was nothing in place to prevent them from being shared with other defence or police departments.
Ben Roberts-Smith.Credit: Rhett Wyman
Last week, the full Federal Court dismissed an appeal by Seven West Media, which fought to prevent the release of thousands of emails, WhatsApps and other private messages – sent between Seven West Media executives, Roberts-Smith, and his legal team – to commercial rival Nine.
Seven West Media chairman Kerry Stokes’ private company, Australian Capital Equity, funded Roberts-Smith’s failed multimillion-dollar defamation case against The Sydney Morning Herald, The Age and The Canberra Times through a loan agreement with the former soldier.
Nine Publishing, the owner of this masthead, sought the documents as part of its fight to prove ACE and Seven controlled the litigation.
In the Federal Court on Thursday, Justice Anthony Besanko sought directions from lawyers representing the parties in the case over the release of the vast tranche of documents sought by Nine.
Barrister Joe Edwards requested access to the documents on behalf of the Commonwealth, arguing it was necessary to ensure no material that could breach Australia’s national security rules was inadvertently released.
He argued that during Roberts-Smith’s long-running defamation case against the Nine newspapers, the Commonwealth had been able to view material aired in the trial to ensure any details that could place national security at risk could be redacted or anonymised.
However, Catherine Gleeson, acting for Roberts-Smith, said it was not necessary for the Commonwealth to be granted access to the documents.
She argued her client could be prejudiced if the Commonwealth was provided with copies of the documents with no “regime” in place to guide which individuals or departments within the government could access them.
“The Commonwealth can be seen to represent the Department of Defence, the Australian Federal Police, the Attorney General and, significantly, the Office of the Special Investigator,” Gleeson said.
“There’s a public statement by the Office of the Special Investigator that it is investigating [Roberts-Smith] and that creates a serious risk of prejudice to my client in circumstances in which it’s not identified who will be inspecting these documents and what regime will be in place to make sure that there’s no prospect or risk of there being communication to anyone within the Office of the Special Investigator.”
Besanko found this year that the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was a war criminal who was complicit in the murder of four unarmed prisoners in Afghanistan. He also found the news outlets had proven the former Special Air Service corporal had bullied a fellow soldier.
Roberts-Smith denies all wrongdoing and is appealing the decision, to be heard by the full court of the Federal Court in February.
On Thursday, Besanko ordered the Seven executives’ messages be released to the parties later this month, while a hearing over costs will be heard in March.
Seven and Roberts-Smith’s teams will have days to notify Nine Publishing of any material it seeks to withhold on the grounds it is subject to privilege between a lawyer and client.
Besanko will make an order next Friday on whether the Commonwealth is granted access to the tranche of emails between Seven executives, lawyers and Roberts-Smith.
Last month, Federal Court Justice Nye Perram described some of the emails as containing “personally embarrassing” content, while Seven lawyers warned their release could cause the company “commercial harm in giving them to its direct competitor”.
The court has previously heard that Seven Network’s commercial director, Bruce McWilliam, exchanged more than 8600 emails with Roberts-Smith’s team during the former soldier’s failed defamation case.
Nine also sought file notes, written correspondence, text messages and messages sent over encrypted messaging services, including WhatsApp, Signal and Telegram, between the executives and Roberts-Smith, and Roberts-Smith’s lawyers, relating to the case.
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