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Ben Roberts-Smith engaged in “intimidatory, threatening and controlling” behaviour towards a woman with whom he had an extramarital affair, a Federal Court judge said in a damning judgment dismissing the disgraced former soldier’s costly defamation suit.

On Monday, Justice Anthony Besanko released lengthy reasons for his landmark decision last week dismissing the former Special Air Service corporal’s defamation case against The Age, The Sydney Morning Herald and The Canberra Times.

Besanko found the news outlets had proven Roberts-Smith was a war criminal who murdered unarmed prisoners and assaulted others in Afghanistan. The judge also found the Victoria Cross recipient had bullied a fellow soldier.

The judge did not find the news outlets had proven the former soldier committed an act of domestic violence in 2018 against a former lover, dubbed Person 17, but Besanko found that allegation did not further harm Roberts-Smith’s reputation and his case should be dismissed.

While Besanko found Person 17’s testimony was not sufficiently reliable to prove the alleged assault, he accepted her evidence on a number of matters.

He did not accept Roberts-Smith’s evidence about the alleged incident and said he had lied about being separated from his then-wife at the time of the affair.

Ben Roberts-Smith with his now-estranged wife, Emma Roberts, and their children at Government House in Canberra.Credit: Lauren Black

“I have difficulty accepting [Roberts-Smith’s] evidence on any disputed issue,” Besanko said.

Besanko found Roberts-Smith told Person 17 at a dinner in 2018, that: “If she did anything stupid or turned on …[him], he would burn her house down and ‘it might not be you that gets hurt, but people you love and care about’.”

“He showed her photographs, including photographs of her diary or notebook. This behaviour was intimidatory, threatening and controlling.”

Besanko also pointed to the “threatening tone” of a message Roberts-Smith sent Person 17 earlier in 2018, which read: “Wake up to yourself … I’m trying to mitigate the fallout for you with [redacted]. We can talk about how that looks but you really need to get your shit together or you will be doing it alone. Don’t f—ing abuse me again because it won’t end well!”

“He showed her photographs, including photographs of her diary or notebook. This behaviour was intimidatory, threatening and controlling.”

Roberts-Smith gave evidence that he had asked private investigator John McLeod to follow and film Person 17 in Brisbane in early 2018 to check whether she had an abortion because he suspected she was lying about being pregnant.

“I do not accept … [Roberts-Smith’s] explanation for failing to disclose the video taken by Mr McLeod,” Besanko said.

“I consider that the non-disclosure was due to an appreciation by [Roberts-Smith] … that proof that he had had his lover followed and filmed without her knowledge would reflect poorly on him as indeed it does.”

Person 17, whose identity was suppressed by the court, alleged in court that Roberts-Smith punched her on the left side of her face and eye after a dinner in Parliament House in Canberra in 2018.

Roberts-Smith vehemently rejected the allegation, and a former army officer at the dinner said he witnessed Person 17 fall down the stairs.

Besanko said he accepted Person 17’s evidence that Roberts-Smith was “very angry and that he was very critical of her conduct at the dinner” in Canberra.

“He did complain of her conduct at the dinner and of her creating a big scene as they were leaving the dinner,” Besanko said.

The judge said Roberts-Smith had told the court he “undressed Person 17 and put her to bed” after she injured herself falling down the stairs.

He said he was satisfied Roberts-Smith took “photographs of her with the bed clothes removed” and that he “showed them to Person 17 the following morning and asked her whether he needed to keep the photographs”.

“Such conduct is entirely consistent with his intimidatory, threatening and controlling behaviour generally.”

Besanko said he accepted Person 17’s evidence on a number of matters, but “there are some matters that require close examination”.

This included the fact that Person 17 had lied to Roberts-Smith and said she had terminated a pregnancy in Townsville before her visit to a hospital in Brisbane. She told the court she had a miscarriage.

“She did not tell the applicant of the miscarriage and went to the Greenslopes Private Hospital,” he said.

“She said she wanted to tell the applicant of the miscarriage ‘face to face.’ However, she did not immediately tell [Roberts-Smith] … about the miscarriage, but lied about having had a termination in Townsville.

“This creates a doubt in my mind, and I put it no higher than that, about whether she did intend to tell [Roberts-Smith] about the miscarriage as she claimed.”

He also said there were “many flaws” in her evidence “about a man on the beach approaching her on 3 April 2018 with photographs of her naked in bed with the applicant at the Milton Hotel and threatening to make the photographs public if she did not tell the applicant’s wife of the affair”.

Roberts-Smith told the court he had separated with his now ex-wife, Emma, in late September 2017, and they had remained separated for about six months while he had an “affair” with Person 17 between October 2017 and April 2018.

But Emma Roberts told the court the couple did not separate until January 2020, and she was unaware of the affair until Person 17 appeared out of the blue at the matrimonial home on April 6, 2018.

“I find that the separation story is false,” Besanko said. “The parties were not separated as claimed by [Roberts-Smith].

“[He] … asked Ms Roberts to lie about being separated [in an article in The Australian newspaper in August 2018]. He threatened her with the loss of the children. The applicant did not tell Ms Roberts in January 2018 that he was seeing another woman.

“Clearly, his lie about being separated from Ms Roberts also reflects adversely on his credit.”

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