Ben Roberts-Smith’s TV station backers commissioned a secret report into war crimes allegations made against him by newspapers, the federal court has heard.
But the written report was shared only with a select few, including Seven chairman Kerry Stokes, with the document even kept from Roberts-Smith himself and key members of his legal team.
Journalist Ross Coulthart was given an assignment by Channel Seven’s commercial director Bruce McWilliam to investigate allegations of war crimes committed by Roberts-Smith, published in the Age, Sydney Morning Herald and Canberra Times in 2018, Nicholas Owens SC, acting for the newspapers, told the court.
The report was established as a counter-investigation, Owens said, used to try to dissuade and pressure the newspaper reporters from writing further stories about allegations against the former soldier.
Lawyers for the three newspapers have sought access to the document by subpoena, but Roberts-Smith’s legal team is claiming legal privilege.
Roberts-Smith, a former SAS corporal and a recipient of the Victoria Cross, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports published in 2018 that he alleges are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes, including several murders.
Roberts-Smith has strenuously denied all of the allegations, describing them as “completely without any foundation in truth”. The newspapers are defending their reporting as true.
On Monday, the federal court heard argument over the nature and “primary and dominant purpose” of Coulthart’s report, which was commissioned to investigate allegations made against Roberts-Smith, including that he murdered unarmed civilians while a member of the Australian SAS on service in Afghanistan.
Owens told the court that Coulthart, an investigative journalist, was given the assignment by McWilliam, who told Coulthart to give the document only to him, despite instructing that the cover of the document be addressed to two members of Roberts-Smith’s legal team, Arthur Moses QC and Justine Munsie.
Owens said the document was held by McWilliam, who made two hard copies, given to Moses and to Roberts-Smith’s lawyer Mark O’Brien. Channel Seven chairman Kerry Stokes was given access to the report. Roberts-Smith himself was not given access to see the document, nor was the barrister leading his defence in court, Bruce McClintock SC. Munsie has not been given a copy of the document, Owens said.
Moses, acting for Roberts-Smith, told the court the Coulthart report clearly attracted legal privilege.
“The principal purpose … of the report was the gathering of information and evidence in relation to allegations that were being made against the applicant by unnamed individuals.
“The purpose was to provide the best possible information to his lawyers so they could protect his interests, part of which was his reputation. Seven West media had an interest in receiving the report, because it was indemnifying the legal fees that Mr Roberts-Smith had been incurring for some time.
“That changed later, but at the point of the report being commissioned, it was indemnifying those fees.”
Moses said the stories against Roberts-Smith were a “scurrilous campaign by a media rival”, and Roberts-Smith was being “subjected to this attack because of his employment by Seven West Media”.
Owens, acting for the newspapers, said the document did not attract legal privilege, because it was commissioned by a third party for commercial reasons, not for legal purposes.
Owens said McWilliam’s affidavit evidence to the court was that the first “important” purpose of the investigation was “ensuring any decision to continue to support the applicant was a considered one”.
“The genesis of this idea, and the effectuation of this idea, came not from the applicant (Roberts-Smith), not from the applicant’s lawyer, but in fact from an officer of the applicant’s employer, Mr McWilliam,” Owens said.
“Not only was it Mr McWilliam’s idea to commission this report, Mr McWilliam was the one who called Mr Coulthart and gave him his instructions, and told him what the subject matter of his investigations were to be. He told Mr Coulthart what names to put on the cover, Mrs Moses and a solicitor by the name of Ms Munsie. But he then told Mr Coulthart, ‘don’t give what you do to the people I am telling you to address it to, give it to me’.”
McWilliam reserving to himself the right to distribute the document was a “curiosity”, Owens said.
Owens said the purpose of the document was not for legal advice, but rather “so that there can be back-channelling designed to influence what is being reported”.
Owens said if the document was privileged, it had been effectively “waived” by Coulthart, who wrote to journalists at the then Fairfax newspapers reporting on the Roberts-Smith case.
Owens told the court Coulthardt wrote: “[Public relations adviser Sue] Cato and I have been speaking to your senior management for weeks, openly representing that I am investigating this issue and that we are very concerned about what you are alleging, because numerous witnesses have told me that you’re wrong. So I’m very likely to make a story as a journalist about this at some stage because I do think there’s a very interesting story to tell.”
Moses told the court it was misconceived to assert the report by Coulthart was McWilliam’s project.
“He did this with the authority of Mr Roberts-Smith.”
Justice Wendy Abraham, who is not the judge hearing the main defamation hearing, reserved her decision.
The defamation trial – beleaguered by delays – remains part heard, and has been further postponed because of scheduling difficulties, in particular for interstate and overseas witnesses to access the Sydney court.