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The Guardian - AU
The Guardian - AU
Ben Doherty

Judgment day: Ben Roberts-Smith defamation trial to conclude with dramatic finale

Ben Roberts-Smith arrives at the federal court of Australia in Sydney earlier in his defamation action against three newspapers. The verdict in the case will be handed down today.
Ben Roberts-Smith arrives at the federal court of Australia in Sydney earlier in his defamation action against three newspapers. The verdict in the case will be handed down today. Photograph: Sam Mooy/Getty Images

Judgment in the defamation trial brought by Ben Roberts-Smith VC – Australia’s most decorated living soldier and a man accused of murdering unarmed civilians while serving in Afghanistan – will be delivered Thursday afternoon in Sydney.

One of the most dramatic – and costly – trials in Australian legal and military history will reach its conclusion at 2.15pm AEST in Sydney’s federal court building, when Justice Anthony Besanko hands down his highly anticipated, hugely consequential verdict.

Roberts-Smith, a former SAS corporal, alleges that three Australian newspapers – the Age, the Sydney Morning Herald and the Canberra Times – defamed him in their reporting, falsely portraying him as a war criminal and murderer who “broke the moral and legal rules of military engagement”, as well as a hypocrite, bully and domestic abuser. He denies all wrongdoing.

The newspapers are defending their reporting as true. In their defence, the newspapers accuse Roberts-Smith of complicity in the murder of six civilians while on deployment in Afghanistan between 2009 and 2012, including machine-gunning an unarmed disabled man, and kicking a handcuffed prisoner off a cliff before ordering him shot dead.

He has also been accused, as part of the newspapers’ defence, of ordering subordinates to execute prisoners, bullying and assaulting comrades, and of committing an act of domestic violence against a woman with whom he was having an affair.

Roberts-Smith’s lawyers told court his accusers are fabulists and fantasists and failed soldiers embittered by their own “cowardice”, and said they had a “corrosive jealousy” towards their comrade’s successes on the battlefield and off it.

The costs of the year-long trial, attended by a bar table groaning with post-nominals, has been estimated by sources close to the trial at $35m, an expense that will likely be borne in large part by the loser of this trial.

If Roberts-Smith wins, he will potentially be entitled to multiple millions beyond that in damages.

An appeal can be expected from the losing side, whichever way the judgment goes Thursday afternoon.

The man at the centre of the trial, Roberts-Smith himself, will not be in court for the judgment. Having attended every day of the trial, he is currently on the resort island of Bali, in Indonesia.

The two journalists whose work was the centrepiece of the allegations, Chris Masters and Nick McKenzie, are expected to be present when the judgment is delivered.

Besanko’s judgment will be consequential for all involved.

If the allegations against Roberts-Smith are found proven – to the civil standard of “balance of probabilities” – “it would indelibly and permanently tarnish his standing and good name”, his barrister, Arthur Moses, told the court.

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

Roberts-Smith took out a loan from his employer, the media baron Kerry Stokes, to run the defamation action: if he loses, he has offered his Victoria Cross as collateral.

For the newspapers, beyond a calamitous financial impact, a loss could be expected to seriously dampen their enthusiasm – and the Australian media’s more generally – for critical, public interest investigations.

Should Roberts-Smith win, his vindication will, in many eyes, restore his former standing as a decorated veteran venerated for his gallantry in battle: a contemporary embodiment of Australia’s Anzac legend.

But the defamation trial process itself has likely been damaging to Roberts-Smith’s military and public standing.

The trial saw former comrades tell court, as part of the newspapers’ defence, that they saw Roberts-Smith murder unarmed civilians in breach of the laws of war, and testify he was a bully and violent towards some he served with.

The trial also laid bare the spiteful breakdown of his marriage to the mother of his two daughters, Emma Roberts, and a tempestuous, fractious affair with a woman he met after leaving the military.

If the newspapers win, it will cement the reputations of the journalists who wrote the stories. The trial revealed painstaking work, over years, to verify what were tightly held rumours within the arcane and clandestine world of Australia’s SAS regiment.

But the judgment may not be a straightforward decision one way or the other. The judge could find the newspapers were successful in proving some of the allegations in their defence, but not others.

If so, the judgment is likely to be a balancing act weighing up the damage to Roberts-Smith’s reputation of the unproven allegations against those that were proven.

The trial has had broader impact still: military details of Australia’s unsuccessful 20-year campaign in Afghanistan have been laid bare in open court; ministers of the crown have been subpoenaed to give evidence; media empires have been pitched in scarcely concealed conflict; and institutions like the Australian War Memorial, which still hosts a display dedicated to Roberts-Smith, have been drawn in.

Within Australia’s military hierarchy, questions have been raised of the command responsibility of senior officers, and of the more distant decision makers who repeatedly sent the same small cohort of soldiers to the ill-defined frontlines of a dangerous, damaging war, fighting an elusive, indistinct enemy.

The trial, too, has exposed a spiteful factionalism within Australia’s usually secretive SAS regiment. It has pitted comrades against each other: former best friends who have given irreconcilable evidence.

And there remains, too, a potential further criminal dimension.

Already, one member of the Australian SAS has been charged with the war crime of murder arising from his alleged conduct in Afghanistan. Former trooper Oliver Schulz’s case is before the courts in NSW. He potentially faces life imprisonment if convicted.

The Australian government’s Office of the Special Investigator is examining “between 40 and 50” allegations of criminality by Australian special forces troops in Afghanistan.

According to a recent court judgment in other civil proceedings, Roberts-Smith has been told by the Australian federal police he is a suspect in their investigations into alleged war crimes committed in Afghanistan: that judgment also noted no charges have been brought against Roberts-Smith.

Regardless of the result in the defamation action, there remains the possibility that Roberts-Smith is ultimately criminally charged – and forced to defend at trial – allegations of war crimes.

  • Guardian Australia will publish a special episode of the podcast Ben Roberts-Smith v the media on Friday morning. Subscribe to Ben Roberts-Smith v the media to catch up on the court case and be notified of new episodes

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