AFP refuses to confirm if it is investigating Ben Roberts-Smith’s possession of classified material

Die Australian federal police has refused to confirm whether it is investigating admissions made by Ben Roberts-Smith in court during his defamation trial that he held classified and secret material – including footage of a raid on an Afghanistan compound during which he is accused of murdering a man with a prosthetic leg – in an apparent breach of national security laws.

Under cross-examination last week during his defamation trial, Roberts-Smith conceded he knowingly kept classified and secret material on a series of USBs at his Queensland home without authorisation.

One of the classified pieces of information was described in court by lawyers for the newspapers defending the claim as “highly classified drone footage” of an SAS mission in Afghanistan in 2009 in which Roberts-Smith participated.

The mission was to a village called Kakarak in Uruzgan province and included a raid on a compound codenamed “Whiskey 108”, during which Roberts-Smith is alleged to have dragged a captive and unarmed man with a prosthetic leg outside the compound before throwing him to the ground and shooting him dead with a machine gun.

Roberts-Smith denies murdering the man, but says he shot and killed the man who was an insurgent, armed at the time and a legitimate target who could be killed under the laws of armed conflict.

The killing of the man with the prosthetic leg – the leg was souvenired by another soldier and later used as a drinking vessel by Australian soldiers at their unofficial bar – is a key allegation against Roberts-Smith made by three newspapers which the soldier is suing for defamation.

Nicholas Owens SC, the barrister acting for the newspapers, put it to Roberts-Smith in court his unlawful possession of the “secret classified” material could “imperil Australia’s national security if it was hacked or stolen”. Roberts-Smith denied this.

Under the Australian government’s security classifications, secret information can cause “serious damage to the national interest, organisations or individuals” if compromised.

There are numerous laws that prohibit the holding, misuse or dissemination of classified information. Section 122 of the criminal code imposes prison sentences of between three and seven years for the misuse of information “causing harm to Australia’s interests”.

Whistleblowers, such as David McBride, have been charged, and journalists raided, for possessing or distributing classified commonwealth information.

In response to a list of questions from the Guardian, an AFP spokesperson said: “the AFP will not comment on matters that may be subject to investigation”.

But sources have told the Guardian the AFP is aware of the material in question and has had possession of the information from the USBs for several months.

In April, before the Senate, AFP deputy commissioner, Ian McCartney, said police had opened an investigation into allegations Roberts-Smith had buried the USBs in his back yard, allegations Roberts-Smith denies.

“Some of the allegations that have been raised are serious and it’s being treated as a priority by the Australian federal police," hy het gesê.

In court last week, Roberts-Smith said he was anonymously sent a number of USBs containing pictures, video and classified reports from his service in Afghanistan after he asked former colleagues for information that could help his defamation action against the newspapers.

He conceded in court he knew that at least some of the material on the USBs “was classified ‘secret’ commonwealth material”.

He said he understood he was not authorised to keep secret classified information at his home, but that he did not know it was a criminal offence.

“I didn’t think it was a criminal offence. I thought it might have been an issue with defence, as in, against regulations, I accept that. I didn’t realise it was a criminal offence.”

The court heard at least one of the USBs contained “highly classified drone footage of the Whiskey 108 mission”.

Owens put it to Roberts-Smith: “and you understood that that was very important secret commonwealth material that you shouldn’t have in your possession?”

Roberts-Smith replied: “What I understood was the first time I’ve ever seen a document that had ‘Whiskey 108’ in it, so it was extremely useful for us to understand what was going on, considering I had had allegations made about me about that particular building.”

Owens: 'Nou, I’m not denying that you thought it was very useful for you to have that information, but you understood you shouldn’t have it, didn’t you?”

Roberts-Smith: “Yes.”

Owens: “Did you do anything to return that secret and classified material to the commonwealth?”

Roberts-Smith: “No.”

Owens put it to Roberts-Smith: “You deliberately kept secret and classified material at your home knowing that it could imperil Australia’s national security if it was hacked or stolen?”

“No, I think that is a stretch too far,” Roberts-Smith replied. “I’m sorry. Those images had absolutely nothing to do with Australia’s security, and everybody can see that, because every one of those images is about a building. I believe it’s a wrong thing to do. I accept that. To suggest it was putting our national security at jeopardy is completely false.”

Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of ­reports published in 2018. He alleges the reports are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes, including six allegations of murder.

The 42-year-old has consistently denied the allegations, saying they are “false”, “baseless” and “completely without any foundation in truth”. The newspapers are defending their reporting as true.

The defamation hearing has been adjourned, likely for a month, because Sydney’s Covid outbreak has restricted witnesses from attending court.

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