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Ben Roberts-Smith wiped laptop containing ‘national security issues’ after being asked not to, court hears | Australian military

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Ben Roberts-Smith wiped laptop containing ‘national security issues’ after being asked not to, court hears | Australian military

Victoria Cross recipient Ben Roberts-Smith wiped a laptop containing possible “national security” material, five days after being formally requested by lawyers to retain it, the federal court has heard.

His wiping of potentially sensitive material – some of which may have national security implications, and could impact upon his upcoming defamation hearing – “will be a matter for trial”, the court was told.

Roberts Smith transferred information from a series of USBs on to a laptop last year.

On 17 April this year, five days after he’d been formally requested by lawyers for Nine newspapers “to retain documents associated with the USBs”, he wiped the laptop’s hard drive.

Roberts-Smith, a former SAS corporal, is suing the Age, the Sydney Morning Herald and the Canberra Times over a series of reports from 2018 that accused him of committing war crimes while on deployment in Afghanistan, including murdering unarmed Afghan civilians.

The newspapers are defending their reporting as true. Roberts-Smith has consistently denied the allegations.

At a preliminary hearing before Justice Anthony Besanko on Tuesday, the federal court heard from lawyers for the newspapers that Roberts-Smith had retrieved the USBs from his former home in about June 2020.

Lyndelle Barnett, acting for the newspapers, told the court: “We had sought a notice to produce for those USBs and were informed by [Roberts-Smith] that he condensed the contents of those USBs on to his laptop, in about August or September of last year, and discarded the USBs.”

“We then sought the laptop, with a view to it being inspected by an expert and were told on Friday night that [Roberts-Smith] has wiped the hard drive of that laptop, very recently, on the 17th of April.

“That did occur five days after we wrote to [Roberts-Smith] requiring him to retain documents associated with the USBs. So we are concerned about the hard drive being wiped in those circumstances, it is something we wish to explore.”

Barnett said the newspapers’ legal team still wanted access to the laptop but, cognisant that any information still recoverable may have national security implications, has proposed an independent court-appointed expert examine the computer to see if any information is recoverable and to examine any metadata that is accessible.

Bruce McClintock, acting for Roberts-Smith, said the former soldier was “happy to provide the laptop”.

“There is nothing sinister in what has occurred. My client was in the course of buying a new computer and trading in the old one. That’s the reason for these events.”

“The five USBs – whatever number they were – were in fact condensed into one USB, which … is with my instructing solicitors.”

“I believe there are national security issues.”

Barnett told the court: “We don’t accept it was appropriate for the applicant to wipe his hard drive after being asked to retain it, but that will be a matter for trial.”

McClintock, for Roberts-Smith, told the court that documents sought by his client had also been destroyed by the newspapers, citing recordings of interviews with relatives of an Afghan civilian called Ali Jan, whom Roberts-Smith has been accused of kicking off a cliff and ordering shot. The interviews sought “include recordings of Ali Jan’s wife”. Ali Jan’s wife is not a witness in the defamation case.

Certain excerpts had been reproduced in some of the public reportage, McClintock said, but “we have been informed the recordings were destroyed”.

Barnett, for the newspapers, said the “documents were deleted prior to the commencement of these proceedings … they weren’t relevant to any of the issues in the case, or editorially, which is why they were deleted”. She said the documents deleted were, for example, short videos shot on an iPhone that contained no relevant information.

But McClintock said he would seek specific information about who destroyed the documents and when.

“This is a significant issue about the destruction of documents … I do want to take this matter further.”

The defamation hearing is scheduled to begin on 7 June and has been set down for 10 weeks. It is expected to hear from former comrades of Roberts-Smith, his estranged wife, Afghan civilians whose family members were killed, and from former governor-general Quentin Bryce.

Roberts-Smith will be the first person to give evidence.

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