Newspaper lawyers want access to "deeply personal" documents that could reveal SAS veteran Ben Roberts-Smith told a key witness to "lie" about an alleged affair as they defend reports of war crimes and domestic violence, a court has heard.

Mr Roberts-Smith is suing former Fairfax titles The Sydney Morning Herald, The Age and The Canberra Times over stories accusing him of breaking the rules of combat while deployed in Afghanistan.

The Victoria Cross recipient is also suing the publications for defamation over allegations of domestic violence, including that he punched a mystery woman known as Person 17 in the head during an alleged affair.

Ben Roberts-Smith claims a series of newspaper articles defamed him. Picture by Sean Davey.
Ben Roberts-Smith claims a series of newspaper articles defamed him. Picture by Sean Davey.

Mr Roberts-Smith, 41, denies the claims of violence and says the relationship was not an affair as he was separated from his wife Emma at the time.

The Federal Court heard on Monday the newspapers had requested unredacted documents that could provide insights into the alleged romance, including an affidavit from one of his own witnesses.

Lyndelle Barnett, acting for the papers, told the court the witness described the relationship with Person 17 as "an affair" and claims Mr Roberts-Smith insisted she "lie" about its nature.

The soldier's barrister Bruce McClintock told the court the documents contained "deeply personal information" material that "no one" would want others to see.

"The material in there is material that any person would not want people to know … including lawyers in hostile proceedings like this," Mr McClintock said.

He argued that redacted versions of the documents should be provided to the respondents instead, blacking out any material "we say is irrelevant".

SAS Corporal Ben Roberts-Smith photographed immediately after the action that won him the Victoria Cross in Afghanistan.
SAS Corporal Ben Roberts-Smith photographed immediately after the action that won him the Victoria Cross in Afghanistan.

Ms Barnett, however, said the material could be "highly relevant" to the defence case and argued the material might go to the witness's credibility if they were called to give evidence at an upcoming trial.

She asked that access to the material be restricted to legal representatives involved in the case to avoid any public disclosures.

"If this material is truly irrelevant it will unlikely see the light of day beyond that," she said.

Person 17 shapes as a key defence witness in the defamation proceedings.

Justice Anthony Besanko has given both parties time to file submissions about the next course of action, with Justice Besanko to make an order in coming weeks.

Mr Roberts-Smith is Australia's most decorated living soldier and was deployed to Afghanistan six times between 2006 and 2012.

Ben Roberts-Smith is awarded a Victoria Cross in January 2011. He became the 98th Australian recipient of the award.
Ben Roberts-Smith is awarded a Victoria Cross in January 2011. He became the 98th Australian recipient of the award.

He launched legal action after the series of articles published in 2018 aired allegations that the corporal kicked a bound Afghani villager off a cliff, executed an unarmed civilian and bullied his colleagues.

The newspapers deny the stories carried defamatory imputations that Mr Roberts-Smith disgraced his country and the Australian Army through his conduct overseas and abused a woman.

Otherwise, they defend the articles as true.

A trial date has been set down for June 7, 2021, with the proceedings expected to take up to eight weeks.


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