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Jamie McKinnell

Ben Roberts-Smith's defamation trial of the century all boiled down to the question of who was lying

Ben Roberts-Smith examines a portrait of himself at the Australian War Memorial in Canberra in 2014. (AAP: Alan Porritt)

The Ben Roberts-Smith defamation battle boiled down to a simple question: Who was lying?

Australia's most decorated living soldier was this week delivered a devastating loss in the Federal Court, five years after he initiated the civil case against three newspapers and three journalists.

What started as a fight to defend his reputation has ended as an expensive miscalculation, which experts predict will encourage investigative journalism and put the "wind into the sails" of Australian media.

The stories at the centre of the case were published in 2018 by The Sydney Morning Herald, The Age and The Canberra Times newspapers, and contained allegations of unlawful killings in Afghanistan, bullying within the SAS and domestic violence.

The war veteran denied all wrongdoing, and asserted 14 defamatory imputations, or meanings, were contained in the stories.

The most serious allegations, levelled by publisher Nine Entertainment as part of its truth defence, were that Mr Roberts-Smith was involved or complicit in six unlawful killings.

After dozens of current and former SAS soldiers gave evidence, providing at-times conflicting accounts of the key missions, Nine's barrister Nicholas Owens SC said the judge had a "stark choice between irreconcilable accounts".

In other words: Someone was lying.

During a summary of his decision, Justice Anthony Besanko revealed he was satisfied, to the civil standard of proof, that the majority of imputations — including those linked to four of the alleged killings — were substantially true.

Five years ago, Ben Roberts-Smith was one of the most respected and revered Australian soldiers in the public eye.  (ABC News)

These included that Mr Roberts-Smith murdered an unarmed Afghan civilian by kicking him off a cliff and procuring the soldiers under his command to shoot him during a 2012 mission.

And separately, committed murder by machine-gunning a man with a prosthetic leg at a Taliban compound in 2009.

The judge did not find an alleged assault against Mr Roberts-Smith's ex-lover took place due to the reliability of her evidence, but the impact of any reputational damage by publishing it fell away in the context of the overall decision.

Brendan Clift, a lecturer at the University of Melbourne Law School, said the result was an emphatic win for the media.

"I think it will put a lot of wind into the media's sails," he said. 

"This is really a terrific outcome for investigative journalism in this country. It'll encourage investigative journalism."

Mr Clift said for a long time defamation law in Australia had "tilted" towards the protection of reputation, with no kind of public interest defence until recently.

This made publishers more vulnerable under defamation law compared to places such as the US.

Matt Collins KC, a former president of the Australian Bar Association, also said it was an important win for serious investigative journalism.

"A loss, I think, would have struck a very damaging blow to the preparedness of legacy media — like the ABC, like Nine, like News Limited — to fund and then defend important stories of this kind," he told the ABC's 7.30 program.

Mr Roberts-Smith's case ended up being "catastrophic miscalculation", according to Dr Collins.

The proceedings were decided on well-established defamation law principles, making the case legally unremarkable, Mr Clift said.

Investigative journalists Chris Masters (left) and Nick McKenzie (right) had been worried after enduring the mammoth defamation trial.  (ABC News: Harriet Tatham)

But it was "extremely momentous" due to the weight of its subject matter, the serious nature of the allegations, and unique features such as the involvement of "anonymised" SAS witnesses.

Investigative journalists Nick McKenzie, Chris Masters and David Wroe were also respondents.

Masters said he and McKenzie had been "extremely worried" after enduring the protracted defamation battle, but were now relieved.

It has been a costly exercise.

Masters said about $30 million was spent defending the case, and how much Nine would ever recover remained uncertain.

He said he was "somewhat hardened" to the professional and personal toll after a lengthy career, but in this instance that toll was considerable.

"I still think the public needs good investigative journalism and, frankly, I still think it is too hard," he said.

"I don't blame journalists for not wanting to do this kind of work because it really can end up being your death by a thousand courts."

Media lawyer Justin Quill said the substantial cost of defending such a case for a company that stood by its reporters showed "there's something wrong with the system".

He said it was important to remember Mr Roberts-Smith chose to bring the case to court.

"This is about as big an own goal as you can imagine," he said.

Mr Roberts-Smith was nowhere to be seen on the day of the decision.

It was revealed on Friday he had resigned from the Seven Network, where he had been the general manager of its Queensland operations since 2015, but taken leave.

Justice Besanko's full judgement is yet to be published.

A new public interest defence has been in operation in most Australian states since mid-2021, after the Ben Roberts-Smith matter had been filed.

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