Serious allegations made by a lawyer for war hero Ben Roberts-Smith that a war crimes inquiry was leaking against him have been found to be false and backed by "no evidence whatsoever".
An exhaustive investigation has found no factual foundation in claims made by Sydney defamation specialist Mark O'Brien that an official working for a war crimes inquiry had engaged in grave and potentially unlawful misconduct.
Before they were debunked, Mr O’Brien’s leak claims, first lodged with the military inspector in mid-2018, were aired in Federal Court proceedings and in a national newspaper.
The claims had the potential to derail the nation’s most important military investigation, an Inspector-General of the Australian Defence Force inquiry into allegations that Australian special forces soldiers engaged in war crimes in Afghanistan.
But as as the military inquiry has revealed in a detailed investigation report, available online, Mr O’Brien’s allegations were untrue.
Mr O’Brien alleged that a lawyer “working for the [war crimes] Inquiry” had leaked sensitive information from the inquiry to an acquaintance of Mr Roberts-Smith.
He alleged that the lawyer had said to Mr Roberts-Smith's acquaintance, a Queensland doctor called Mark David, that, “if you know anyone looking to go into business with BRS [Ben-Roberts Smith] then tell them to be careful, I am working on a case against him”.
In his official complaint to the military Inspector-General, Mr O’Brien attacked the war crimes inquiry lawyer’s comments as “disturbing.”
“The comments made by the lawyer are defamatory, embarrassing, demonstrates bias against our client and, again, raises a serious concern about the integrity of the Inquiry. It is a highly unsatisfactory that our client has been the subject of defamatory gossip by members of the Inquiry’s staff,” Mr O’Brien wrote.
But his complaint unravelled when the Inspector-General sought further information from Mr O’Brien and interviewed multiple witnesses including Dr David, the acquaintance of Ben Roberts-Smith who had allegedly spoken to the war crimes inquiry lawyer.
Dr David told investigators that he was “adamant” he had had never spoken to any war crimes inquiry lawyer. He also denied he had been told by anybody not to go into business with Mr Roberts-Smith.
Most significantly, the investigation into Mr O'Brien’s complaint found that the war crimes inquiry lawyer in question did not actually exist.
“There is no evidence that any lawyer or other person working for or associated with the [war crimes] Inquiry has made any statement of the kind referred to in the complaint adverse to or which could conceivably be defamatory of Mr Roberts-Smith,” the Inspector-General found.
It appears that Mr O'Brien made his complaint after Dr David decided not to go into business with Mr Roberts-Smith. After this, the Inspector-General's report suggests that social media searches may have linked Dr David to a third party who was in turn related to an army lawyer. This lawyer was not working for the war crimes inquiry.
There is no evidence whatsoever that any lawyer or other person working for ... the Inquiry made any statement to the effect alleged.Leak inquiry report
When interviewed by the Inspector-General, all the parties identified by Mr O'Brien as being involved in the alleged leak denied making the comments that Mr O'Brien had attributed to them.
“Ultimately, there is no evidence whatsoever that any lawyer or other person working for or associated with the Inquiry made any statement to the effect alleged, or anything like it,” the leak inquiry found.
The military inquiry said that the unreliable nature of Mr O’Brien’s complaint should not reflect on Mr Roberts-Smith's credibility because it was “unclear to what if any extent the terms of the complaint are directly attributable to Mr Roberts-Smith, as distinct from being assumptions or surmise on the part of his lawyers”.
“For that reason, while the inaccuracies and inconsistencies in the complaint detract from its reliability, they do not of themselves reflect adversely on Mr Roberts-Smith’s credit,” the report states.
Mr Roberts-Smith is suing The Age and Sydney Morning Herald over allegations implicating his patrol in alleged war crimes. He has also unsuccessfully sought a court injunction preventing adverse reporting about him. He denies all wrongdoing.
Mr O'Brien is his solicitor in those proceedings.
Because investigations into Mr Roberts-Smith are cloaked in secrecy, some reports about Mr Roberts-Smith have been speculative or have relied on court documents that detail untested allegations. Mr O’Brien’s false complaint appears to have been given prominence in The Australian not only because of the gravity of his allegations but because they were lodged in a court by Mr O'Brien and later accessed by a reporter, who reported them faithfully.
Nick McKenzie is an investigative reporter for The Age. He's won seven Walkley awards and covers politics, business, foreign affairs and defence, human rights issues, the criminal justice system and social affairs.
Gold Walkey award winner and the first Australian journalist to be embedded with special forces in Afghanistan, Chris Masters, has been on special assignment with Fairfax Media since January to report on the SAS’s Afghanistan mission.