Lawyers representing Ben Roberts-Smith have told the Federal Court his ex-wife leaked images to the media of soldiers drinking out of a prosthetic leg.
The Victoria Cross recipient is suing newspapers owned by Nine over stories alleging he committed war crimes in Afghanistan between 2009 and 2012 and punched a woman in the face in 2018.
The high-profile trial is due to start on Monday, June 7, where the newspapers will rely on truth as a defence.
Matthew Richardson, one of the barristers on Mr Robert-Smith’s legal team, told a pre-trial hearing the team was still looking through the various images on USB drives that were part of the case.
Nine alleged the images of soldiers drinking from the prosthetic leg of a deceased Afghan man were contained on the drives, which it alleges were found buried in Mr Robert-Smith’s backyard.
After the court heard the newspaper’s legal teams were still unable to access the content of the USB drives, Mr Richardson said Mr Robert-Smith’s former wife, Emma Roberts, leaked the images.
He also said processing the images depicting the prosthetic leg has been such an “onerous” task that it won’t be completed by the time the trial opens.
Lyndelle Barnett, one of the lawyers acting for the newspapers, disputed the claim and said her clients did not have the material nor did they receive it from Ms Roberts-Smith.
Ms Barnett continued, saying only one of her clients had the information being discussed but couldn’t share it with lawyers due to national security laws.
Justice Anthony Besanko said that though the court would be open to the public during the trial, live-streaming the proceedings was unlikely due to the risk of revealing national security information.
“My present inclination is not to,” he said.
“That risk seems to be one that needs to be taken into account.”
The trial is expected to run for up to 10 weeks, with the court hearing that the opening address by Bruce McClintock SC – Mr Robert-Smith’s chief barrister – would run for two to three days.
Mr Roberts-Smith will be the first witness, with his evidence likely taking four days.