Ben Roberts-Smith's lawyers say ex-wife leaked photos of soldiers drinking from prosthetic leg

Ben Roberts-Smith with his then-wife Emma in 2012. (AAP Image: Damon Cleary)

Lawyers for Victoria Cross recipient Ben Roberts-Smith have told the Federal Court his former wife leaked photos of soldiers drinking out of a prosthetic leg to the media. 

Mr Roberts-Smith is suing Nine owned newspapers, which include The Sydney Morning Herald and The Age, over stories that allege he committed war crimes in Afghanistan between 2009 and 2012 and punched a woman in the face in Canberra in 2018.

In a high-profile trial due to open Monday, the newspapers will rely on truth as a defence. 

One of the barristers on Mr Roberts-Smith's legal team, Matthew Richardson, told a pre-trial hearing the team was still going through various images on USB drives that were part of the case.

Nine has alleged in court the drives contain images of soldiers drinking from the prosthetic leg of a dead Afghan man and that the drives were found buried in Mr Roberts-Smith's yard.

This photo of Ben Roberts-Smith at a party on the military base was aired on 60 Minutes. (Supplied: Nine)

After the court heard the legal teams for the newspapers still didn't have access to the USB drives, Mr Richardson said Mr Roberts-Smith's ex-wife, Emma Roberts, leaked the images to the media.

He said the images of the prosthetic leg won't all be processed by the time the trial opens because it is an "onerous" task.

One of the lawyers acting for the newspapers, Lyndelle Barnett, disputed his claim, saying her clients did not have the material and did not receive it from Ms Roberts-Smith.

Ms Barnett said only one of her clients had the information being discussed but could not hand it over to lawyers due to national security laws. 

A photo published by The Sydney Morning Herald and The Age which shows Ben Roberts-Smith with the prosthetic leg. (Supplied: Nine Newspapers)

Justice Anthony Besanko said the court would be open to the public for the trial but proceedings were unlikely to be live-streamed as there was a risk of disclosing national security information. 

"My present inclination is not to," he said. 

"That risk seems to be one that needs to be taken into account."

The court heard the opening address by Mr Roberts-Smith's chief barrister Bruce McClintock SC would run for two to three days.

Mr Roberts-Smith will be the first witness and his evidence is likely to take four days. 

The trial is expected to run for up to 10 weeks.