Ms Roberts was ordered to hand over any documents to the court’s Brisbane registry,and given until next Friday to file an affidavit setting out when and how any such information was obtained by her,and to whom it had been given.
Justice Robert Bromwich asked if Mr Roberts-Smith’s legal team was “simply waiting for the affidavit before you can make a decision as to the next steps,from your client’s point of view?”
Mr Moses agreed. He said “a concern arose” after the media asked Mr Roberts-Smith to produce certain documents in the defamation proceedings,and “some of the documents ... were emails or attachments to emails sent to or from the applicant’s email account and were not stored by the applicant anywhere else”.
He suggested there was a possibility “emails had also been deleted from the inbox and outbox of this email account without his consent”.
Justice Bromwich said on Friday he was concerned to “ensure that none of these sorts of issues impede the smooth running of the trial,or at least no more than they need do”.
A different judge,Justice Anthony Besanko,is presiding over the defamation trial and Justice Bromwich said “we can keep Justice Besanko in a broad sense ...[informed of] what’s happening just so that,again,it doesn’t affect the smooth running of the trial”.
The court heard the media outlets and their lawyers had already informed the court and Mr Roberts-Smith’s lawyers that they did not have any such material in their possession.
Mr Moses alleged documents were produced under subpoena by Ms Roberts in the defamation proceedings that were covered by legal professional privilege or would have been caught by confidentiality orders relating to the Afghanistan inquiry.
Mr Roberts-Smith,a Victoria Cross recipient,launched the defamation lawsuit in 2018 over media reports that he says accused him of murder during his 2009 to 2012 tour of Afghanistan.
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He is also suingThe Age and theHerald,owned by Nine,three journalists,andThe Canberra Times, now under separate ownership,over an allegation of committing an act of domestic violence against a woman with whom he was having an extramarital affair. Mr Roberts-Smith denies all wrongdoing.
Ms Roberts was initially expected to be a witness for her ex-husband,and to say the couple were separated when he started a new relationship. However,Ms Roberts now says that is false and she was being pressured by Mr Roberts-Smith to lie about the affair.
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