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'Stakes high for both sides' as Ben Roberts-Smith marathon trial comes to an end

Ben Roberts-Smith claims his reputation was destroyed by three newspapers and three journalists. (AAP: Dan Himbrechts)

Ben Roberts-Smith's quiet exit from Sydney's law precinct, to the clicks of a single photographer, belied the gravity of what transpired in the courtroom behind him for the previous 13 months.

With a polite smile, Australia's most decorated living soldier began what will likely be a months-long wait for the judge's decision.

The 42-year-old's lawyers used their final days in the Federal Court to frame the marathon case as having one purpose: the vindication of his reputation.

Mr Roberts-Smith claims that reputation was destroyed by three newspapers — The Sydney Morning Herald, The Age and The Canberra Times — and three journalists, when they published a series of stories in 2018.

He said the allegations they contained, of war crimes on the battlefield in Afghanistan, bullying former SAS colleagues, and domestic violence, were false.

"I spent my life fighting for my country and I did everything I could to ensure I did it with honour," he told the court last June, denying he ever broke the rules of engagement.

The court heard Mr Roberts-Smith was the victim of a "sustained campaign" by Nine to unfairly create the belief he committed war crimes. (ABC News)

In its bid to establish a defence of truth, publisher Nine Entertainment accused the veteran of committing, or being complicit in, six murders on deployment.

More than 40 witnesses were called over 110 days of hearings, many of them current and former SAS operators whose identities remained a closely guarded secret, and extraordinary details of SAS missions were aired in open court.

When they testified against their former colleague, many were accused of jealousy by Mr Roberts-Smith's barrister Arthur Moses SC, who ultimately submitted the case involved cowardice from those who made allegations "in the dark" and fed lies to journalists.

David Rolph from the University of Sydney said the legal significance of the proceedings lies not in any novel issue or point of law which emerged, but in what is at stake.

"On the one hand, you've got someone who obviously is a highly-decorated soldier, and so, therefore, has a very high reputation," he said.

"You have serious public interest journalism being put to the proof, and so the stakes here, I think on both sides, are very high."

The media law specialist said the case was one of the longest defamation cases Australia has seen. In absolute terms, it is probably going to be the most expensive, due to the sheer number of hearing days and interlocutory disputes.

Those smaller legal battles, including aspects of national security, confidentiality and parallel proceedings against Mr Roberts-Smith's ex-wife, became a characteristic of the trial and contributed to its expense and length, according to Professor Rolph.

A 'fundamental departure' 

When a secret tunnel was discovered at the Taliban compound known as Whiskey 108 in April 2009, the soldiers on the mission could never have known the pivotal role it would play in a Sydney courtroom more than 12 years later.

Nine Entertainment alleged two unlawful killings occurred at the compound; one, an Afghan man whose prosthetic leg would come to be used as a drinking vessel, and a second older Afghan man.

They had surrendered from the tunnel before one was allegedly executed outside by Mr Roberts-Smith, and the second in his presence by a colleague, according to Nine's case.

But Ben Roberts-Smith said two people shot that day were armed insurgents, legitimately engaged outside the compound.

Nine's barrister, Nicholas Owens SC, told the judge the two versions "depart fundamentally" from the point of asking whether the men were in the tunnel or not.

Both sides produced SAS witnesses to back up their respective cases; with a group testifying for Nine variously describing men surrendering, and another group called by Mr Roberts-Smith insisting the tunnel contained only a weapons cache.

Some of Nine's witnesses claimed to have seen aspects of alleged executions.

The question of culture

While it heard about several very specific missions, the trial provided insights into Australia's involvement in Afghanistan and its operational culture throughout the campaign.

Joshua Roose, a senior research fellow at Deakin University's Alfred Deakin Institute, said what stuck with him most was the broader, much deeper-seated issues of a cohort of men, some of whom were completing 10 or more rotations, which was "not necessarily being supervised in a cohesive manner".

This created "moral fatigue", he said, from "effectively being the tip of the spear, coming home for a few months, and going off and doing it again".

And so developed "brutal subcultures", Dr Roose said.

"The fact that this has been played out in public has been immensely damaging, not only for Ben Roberts-Smith and his case but also for the Australian Defence Force."

It had "cast a light" on an "incredibly dysfunctional" culture, but in doing so also offered the ADF something to consider as it rebuilds both its internal culture and its brand in the wider community, he said.

'There was no kick'

About two years after the raid on Whiskey 108, another mission which featured prominently in the trial took place in the village of Darwan.

Mr Roberts-Smith was accused of kicking a handcuffed Afghan man named Ali Jan over a cliff, before he was executed in a creek bed below.

The veteran told the court a man shot that day, in September 2012, was a suspected Taliban spotter who was killed after hiding in a cornfield.

He insisted there was "no kick", and no cliff.

Nicholas Owens SC said the SAS veteran and four of his witnesses gave "wholly implausible" accounts. (AAP Image: Bianca De Marchi)

SAS witness Person 4, called by Nine, claimed to have seen Mr Roberts-Smith "catapult" a man off a slope, and some of his teeth being knocked out as his face hit rocks.

On a separate mission also in 2012, a soldier codenamed Person 14 claimed he saw Mr Roberts-Smith direct, via an interpreter, an Afghan soldier to execute an unarmed local man.

But the identity of the Afghan soldier proved contentious after four of Mr Roberts-Smith's witnesses claimed he wasn't present on the mission.

It was a suggestion that drew accusations of collusion from Mr Owens, who told the judge that was the most probable inference of multiple witnesses producing the same "demonstrably false recollection".

Mr Moses, on the other hand, branded Nine's witnesses, including Person 14, as "liars and perjurers".

According to the barrister, Mr Roberts-Smith's Victoria Cross, for the Battle of Tizak, led to a "war of words" from those guilty of "professional jealousy".

Person 17

Through the woman known in court as Person 17, whose affair with Mr Roberts-Smith ended in 2018, the judge heard intensely personal details of the veteran's life back in Australia.

She alleged Mr Roberts-Smith punched her to the side of the face in a Canberra Hotel in March 2018, following concern her behaviour at an earlier Parliament House function may have exposed their relationship.

The court also heard she'd fallen down stairs while leaving the function, hitting her head.

Ben Roberts-Smith denied striking Person 17 and described domestic violence as "reprehensible" during his time in the witness box.

A collection of phone messages between the pair was made public, revealing the tumultuous nature of the affair.

The wait begins

On the final day of the trial, Mr Moses urged the judge to reject Nine's truth defence, claiming their evidence had fallen short.

Nine's case was "one of mere suspicion, surmise and guesswork, to condemn a man who served his nation with great distinction as a war criminal," he said.

Arthur Moses branded Nine's witnesses, including Person 14, as "liars and perjurers". (AAP: Bianca De Marchi)

Justice Anthony Besanko told the parties they would be notified of when he is ready to deliver his judgement. There is no indication of how long it may take.

Professor Rolph expected that judgement to be lengthy, given the meticulous fact-finding required with respect to various allegations.

"Looking at the way in which the fact-finding for the defence of truth plays out, I think, will be the central feature of that judgement," he said.

"And that will be what will consume the length of the judgement, I would imagine.

"How a trial judge deals with competing accounts and weaving their way through a very substantial amount of evidence will, I think, be the most interesting thing."

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