Call for medical records amid dispute over ‘affair’ in Ben Roberts-Smith case
The news outlets being sued by Ben Roberts-Smith have sought the former SAS soldier’s medical records amid a factual dispute over whether he was having an affair when he allegedly punched a woman in the face.
Mr Roberts-Smith, a highly decorated former soldier and Victoria Cross recipient, is suing The Age and The Sydney Morning Herald over reports he allegedly committed murder during deployments to Afghanistan between 2009 and 2012 and allegedly punched the woman with whom he was having an affair in the face in Canberra in 2018.
Former soldier Ben Roberts-Smith.Credit:Getty Images
Mr Roberts-Smith denies the allegations and says the reports are defamatory because they portray him as a criminal.
The media will defend the claim using a truth defence at a defamation trial starting on June 7.
Ben Roberts-Smith. Credit:ADF
At an administrative hearing on Friday, the Federal Court heard the news outlets wanted access to Mr Roberts-Smith’s medical records amid contrasting recollections of his relationship with a woman – known as Person 17 – between late 2017 and early 2018.
“There’s an allegation that an argument ensued at a hotel room because [Mr Roberts-Smith] was angry with Person 17’s behaviour at the function and his fear that she may have exposed the affair,” barrister Alexander Edwards, acting for the media, told the court.
Mr Roberts-Smith denies assaulting Person 17.
Mr Edwards said Mr Roberts-Smith states he was separated from his then wife, Emma Roberts, when in the relationship with Person 17.
But, Mr Edwards said, Ms Roberts’ recall was that she knew the relationship to be an affair. Ms Roberts claims Mr Roberts-Smith later “asked me to lie and say we were separated at the time of the affair”.
Mr Edwards said the former soldier’s medical records might assist to resolve the factual dispute.
“We have a medical practitioner who may hold the set of records capable of shedding light on the contest,” he said.
But Matthew Richardson, acting for Mr Roberts-Smith, accused the media’s lawyers of “fishing” for information in seeking records from a doctor, psychiatrist and marriage counsellor.
He argued there was no “forensic purpose” in releasing records that would include personal and intimate details about the former soldier, his ex-wife and their children.
The court heard Mr Roberts-Smith told a practitioner he suffered severe anxiety, lost weight and lost his appetite and “that never happened to me before publication of the articles”.
But the media’s lawyers argue the medical records might also reveal whether Mr Roberts-Smith’s stress was more aligned to the inquiry by the Inspector-General of the Australian Defence Force, which investigated the conduct of Australian soldiers in Afghanistan.
In turn, Mr Roberts-Smith’s lawyers want The Age and The Sydney Morning Herald to hand over the entirety of the recordings they have of the former soldier speaking with various associates.
On April 11 the newspapers and Nine’s 60 Minutes published the recordings, which showed Mr Roberts-Smith to be confident of winning his defamation case. Nine is the owner of this masthead.
Mr Richardson sought all the recordings to determine what had been “cherry picked” for use in the media reports and what had been left out. Mr Richardson argued the purpose of the April 11 reports was to “humiliate” his client.
“If they have a covert recording of my client talking about fly fishing or astronomy, fine, I don’t seek that,” he said.
“But if they have covert recordings of [Mr Roberts-Smith] talking about the litigation or the issues in this case that is … relevant.”
Mr Edwards said the media opposed handing over the recordings as doing so might reveal journalistic sources.
Judge Anthony Besanko will rule on the applications at a later date.
However Justice Besanko ruled on Friday that Mr Roberts-Smith would be the first witness called at the trial.
The former soldier’s lawyers had argued he should be the first to give evidence as he initiated the defamation action.
If you are a current or former ADF member, or a relative, and need counselling or support, contact the Defence All-Hours Support Line on 1800 628 036 or Open Arms on 1800 011 046.
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