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The Guardian - AU
The Guardian - AU
Ben Doherty

‘Fanciful, nonsense’: case against Ben Roberts-Smith ‘based on conjecture’, lawyer tells defamation trial

Ben Roberts-Smith leaves the Federal Court of Australia in Sydney.
Ben Roberts-Smith’s barrister has told the defamation trial the newspapers’ case against the former soldier is ‘a nonsense’. Photograph: Dean Lewins/AAP

The case alleging war crimes and murder against Ben Roberts-Smith is “a nonsense and … an embarrassment … based on conjecture, speculation and imprecise testimony” his lawyers have told the federal court, as his long-running defamation trial enters its final phase.

Roberts-Smith was the most decorated soldier of Australia’s long war in Afghanistan, a man who undertook dozens of dangerous missions, captured hundreds of prisoners, and, without exception, obeyed the laws of war, his barrister Arthur Moses SC told the court on Friday morning in closing submissions.

Three Australian newspapers who accuse him of six murders while deployed as part of the SAS to Afghanistan have a “fanciful and salacious case theory, based on conjecture, speculation and imprecise testimony which they propound in this case”, Moses said.

“They failed to establish any motive, the case is a nonsense and, frankly, an embarrassment.”

Roberts-Smith is suing for defamation the Age, the Sydney Morning Herald, and the Canberra Times over reports he alleges wrongly portray him as a war criminal.

The newspapers are defending their reporting as true, including allegations Roberts-Smith was complicit in six murders while deployed to Afghanistan, was a bully, and a perpetrator of domestic violence. Roberts-Smith denies any wrongdoing.

In a combative denunciation of the newspapers’ reporting, and their case before court, Moses quoted Sir Arthur Conan Doyle’s Sherlock Holmes, and cited Neighbours, Seinfeld, and A Few Good Men, in arguing the allegations against Roberts-Smith had not been proved in the year-long defamation trial, and the decorated soldier’s unimpeachable public regard had been gratuitously maligned, by a “campaign to destroy his reputation” and a “full-frontal attack on his character”.

Moses argued Roberts-Smith had had a long career in the SAS: he participated in scores of missions which involved engagements fought within the rules of engagement; and captured hundreds of prisoners, who were lawfully transferred to the custody of Afghanistan’s criminal justice system.

But, Moses said, the newspapers had essentially attempted to argue before Justice Anthony Besanko that Roberts-Smith “apparently is a homicidal psychopath. Seriously?”

Moses said the newspapers’ case was that Roberts-Smith “is a person who switches from great acts of gallantry within the rules of engagement … to a person who for no apparent reason breaches the rules of engagement to kill or be complicit in the killing of Afghan detainees on six different occasions”.

“What possible motive is there for Mr Roberts-Smith to kill or be involved in the killing of six Afghan prisoners? There is none.”

Four of the six murders alleged against Roberts-Smith, are said to have occurred during his last deployment to Afghanistan in 2012. Moses argued Roberts-Smith was an exemplary soldier, “a hero who saved Australian lives”, and “reinforced to other members of the SAS that they needed to adhere to the rules of engagement”.

“Is it plausible and conceivable that the most decorated and recognisable Australian solider would, on his last rotation in Afghanistan, engage in wanton acts of murder, in front of multiple people, multiple eyewitnesses?”

Moses said the allegations made against Roberts-Smith were “of the most serious nature … [and] strike at the very heart of Mr Roberts-Smith’s morality and humanity”.

He argued that the court “must take into account the consequence of finding the allegations proven” when making its decision on whether the allegations were proved to the civil standard of the “balance of probabilities”.

He said a finding that the allegations were true would have “life-changing” consequences for Roberts-Smith.

“It would paint Mr Roberts-Smith as a murderer … a violent person and a domestic violence abuser.

“It would indelibly and permanently tarnish his standing and good name.”

Moses said the injury to Roberts-Smith’s reputation by the newspaper reports had been extreme: a consequence of the gravity of the allegations, compounded by his previously unimpeachable public profile.

“This case is not about money, it’s about the vindication of the reputation of Mr Roberts-Smith.”

The newspapers being sued by Roberts-Smith finished their closing submissions in closed court on Friday morning.

They argued multiple witnesses, who did not know each other, and had no motive to lie, had given sworn testimony during the year-long trial that they saw Roberts-Smith murder civilians and prisoners during his service in Afghanistan. Their testimony, the newspapers’ barrister Nicholas Owens SC said, was corroborated by contemporaneous documentary evidence from the defence force recording the details of specific missions.

Owens also told the court witnesses for Roberts-Smith had clearly colluded in their testimony, giving the same specific disproven facts in their evidence. Lawyers for the newspapers said there was ample evidence Roberts-Smith had sought to intimidate, coerce and suborn witnesses who would ultimately testify against him. Roberts-Smith has consistently denied any collusion.

Roberts-Smith’s closing submissions are expected to run until the middle of next week.

A judgment from Justice Besanko is not expected for several months.

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