Arthur Moses, SC, enunciates the phrase “winged penis” as though holding it in a pincer grip with silicone gloves. His thick black hair is neatly parted to one side, his manners impeccable, his legal pedigree immaculate. A former president of the NSW Bar Association and former president of the Law Council of Australia, he has represented the highest-profile litigants in the land during his 29 years at the bar.
Now he is representing Ben Roberts-Smith, Australia’s most decorated living soldier, and he is picking around the regiment humour of the Special Air Service troops who served in Afghanistan. The evidence in this trial has ranged through the seediest basements of the soldiers’ private lives and brought matters once whispered between veterans into the public sphere. It has broken friendships among the troops, many of whom were called to testify under pain of subpoena and resented the fact of the trial’s existence.
But Moses knows as well as anyone that the evidence heard in court is only part of the story. “In 2012, did you see pictures of a winged penis back at Tarin Kowt, at the base?” he asks, lifting his blue gaze to the witness.
As Roberts-Smith and The Age, The Sydney Morning Herald and The Canberra Times hurtled toward what would be the longest and most expensive defamation trial in Australian history last year, there was a heady sense that anything could happen. Frequently it did.
The start of the trial was delayed for a year due to COVID restrictions on travel and the courthouse. Three months before the trial’s opening day, Roberts-Smith’s estranged wife, Emma Roberts, switched sides and agreed to testify for the newspapers. Two months before the opening, Nine’s barrister Sandy Dawson, SC, who was intimately across the case, was forced to withdraw for health reasons. Two weeks before the opening, former governor-general Quentin Bryce, who had been listed as a character reference for Roberts-Smith, decided not to testify. (An unannounced visit by him to her house with flowers reportedly stiffened her existing reservations.)
A week before the opening, Roberts-Smith filed legal action against his estranged wife in the Federal Court, claiming she had passed privileged information to Nine’s lawyers, which had the potential to knock the whole trial off kilter. She denied this was so.
One day before the trial, a rival news site ran an eye-catching photo gallery of a shirtless Roberts-Smith working out on the Stairs of Doom in Woolloomooloo. “EXCLUSIVE: SAS hero Ben Roberts-Smith looks fighting fit during a gruelling training session ahead of a battle to prove he’s NOT a war criminal - as he breaks his silence on the ‘trial of the century’,” the Daily Mail’s headline read.
The prose had overtones of a bodice ripper (“the Victoria Cross recipient appeared every bit the determined warrior as he ripped off his singlet during 20 consecutive stair sessions”) and its publication on the eve of the trial pointed to another play occurring behind the scenes, even as teams of lawyers feverishly prepared for the case.
In one corner was the former SAS soldier accused of murder, domestic violence and bullying, who had made a virtue of his unwillingness to take a backward step and been honoured for courage on the battlefield. He was financed by Seven West Media chairman Kerry Stokes, a self-made billionaire who had long used the courts to achieve his business objectives. The reputation of the Australian Defence Force was at stake.
Bruce McClintock, SC, left, with Ben Roberts-Smith outside court on the first day.Credit:Getty Images
On the other side of the ring, multi-award-winning investigative journalists Nick McKenzie, of The Age, the Sydney Morning Herald and the Canberra Times, and Chris Masters, formerly of the ABC, each of whose willingness to persist against powerful interests had made them giants of their profession, and defence reporter David Wroe (who had since gone to work for then foreign affairs minister Marise Payne). They were backed by McKenzie’s employers at Nine. The future of investigative journalism was at stake.
This was not a criminal war crimes trial: it was a defamation suit, brought by Roberts-Smith, over a series of articles in 2018 that he says portray him as a war criminal complicit in the unlawful killing of unarmed Afghan prisoners. Under the rules of engagement that bound the SAS, prisoners could not be killed. He denies all wrongdoing. The media outlets are seeking to rely on a defence of truth and allege Roberts-Smith was involved in six unlawful killings in Afghanistan, including two in 2009 at a site known as Whiskey 108.
If this was a game of chicken, neither side blinked.
On June 7, 2021, Roberts-Smith arrived at the Federal Court in Sydney’s Queen’s Square, flanked by his statuesque parents and accompanied by two silks, two junior barristers, a small army of solicitors, a public relations officer and the commercial director of his employer Seven West Media. Nine matched his firepower with three barristers, including silk Nicholas Owens, SC, five in-house and external solicitors, two senior editors and three reporters to cover the story.
Almost every media outlet in the country sent reporters to the opening. There were officers from the Australian Federal Police investigating allegations of war crimes. A matronly woman with hair in a bun was said to be a top spy. The Commonwealth sent two barristers and several solicitors to monitor for potential breaches of national security laws. The trial became an engine of many moving parts, which often flew off independently.
The first unexpected spin-off was generated by a column item in the Australian Financial Review that mentioned a photograph of Roberts-Smith holding hands with his solicitor, Monica Allen, while out in Brisbane’s Botanic Gardens. The picture had been published a year earlier by News Corp newspapers. Allen’s boss, Mark O’Brien, later agreed it was “unwise” for the pair to be socialising, while musing that “it’s interesting that in 2020 people make assumptions about friendships between adults”.
One of Roberts-Smith’s lawyers, and friend, Monica Allen walking outside court with Seven’s commercial director, Bruce McWilliam (far left of image).Credit:Janie Barrett
But the AFR’s suggestion that the relationship between Roberts-Smith and Allen might be more than professional came as a surprise to Justice Robert Bromwich, the Federal Court judge deliberating over whether Emma Roberts had passed privileged information to Nine lawyers. Allen had written an affidavit in the matter, and if she was in a personal relationship with her client this should have been disclosed, Bromwich said. “I wasn’t aware of any of this … I’m uncomfortable with the situation.”
Arthur Moses’ rebuttal was a masterstroke. Calling an urgent hearing that afternoon, he told Bromwich before a packed court that not only was it untrue that Roberts-Smith and Allen were in a personal relationship, but the suggestion otherwise by a Nine stablemate was a clear attempt to generate publicity that would embarrass his client’s lawyers.
“That may have a tendency of seeking to intimidate or threaten those lawyers, that may, itself, constitute a contempt of court,” Moses said.
That depiction of Nine newspapers as a cadre of bullies ran at the top of TV broadcasts and news sites that night, rather than the more salacious intimation raised by the judge of an affair between the beleaguered former soldier and his solicitor.
However, neither Bromwich nor most of the media who ran that story would have grasped that Moses’ reference to “those lawyers” in his full-throated defence of Allen also captured his own personal life. Earlier that day, Moses had received a second text message from the Sydney Morning Herald’s state political editor, Alexandra Smith, asking whether he was in a relationship with the then NSW premier, Gladys Berejiklian. The rumour of a romance between Moses and Berejiklian had been circulating for weeks in political and legal circles, raising eyebrows given that he had previously represented her before the Independent Commission Against Corruption. Smith had first messaged Moses two days earlier when Berejiklian’s office declined to comment.
A photo of Gladys Berejiklian and Arthur Moses SC posted by her sister Mary. Credit:Instagram @mishka_bishka
He ignored both messages and the Herald’s news director asked reporters covering the Roberts-Smith trial to buttonhole him if the opportunity arose. But the optics were tricky while they covered a trial in which Moses was litigating against their employer, and after he raised the threat of contempt, it was decided to park the story pending external confirmation.
Two days later, exclusive pictures appeared in Sydney’s Daily Telegraph of Roberts-Smith with his new squeeze, 28-year-old publicist Sarah Matulin. And a little over a week later, the news about Berejiklian and Moses broke via a strategically placed Instagram post by the premier’s sister, Mary, of “Glad and her boo”.
Ben Roberts-Smith and Sarah Matulin were photographed at a Sydney pub.
Rumours that Roberts-Smith had been involved in war crimes first found their way to Masters during his 10-year investigation into Australia’s Special Forces in Afghanistan for his 2017 book No Front Line. Roberts-Smith was by then working as an executive in the Queensland office of Seven West Media. The allegations held potency because the Inspector-General of the Australian Defence Force was running his own investigation into allegations of suspected war crimes.
So when Masters started asking questions, Seven’s commercial director, Bruce McWilliam, suggested to Roberts-Smith that he retain solicitor Mark O’Brien, a notoriously aggressive defamation specialist. Stokes, who was also chair of the Australian War Memorial, offered for Seven West Media to pay the bill (though the loan was later transferred to his personal company account). O’Brien’s first letter to Masters’ publishers reflected his standard modus operandi of defence by attack.
Veteran journalist Chris Masters.Credit:Marco Del Grande
“Mr Masters is clearly motivated to attract publicity to his book and attention to himself for such false and defamatory attacks upon my client,” he wrote to Allen & Unwin. “I have very firm instructions to take all necessary steps to protect my client’s impeccable reputation but trust that will not be necessary.”
Masters was undeterred. Following his book’s publication, he teamed up with McKenzie to look deeper into events touched on by the book, and 10 months later the results of their investigation appeared in The Age, the Sydney Morning Herald and the Canberra Times. The stories did not name Roberts-Smith.
In the Pyrmont headquarters of Seven West Media, McWilliam was familiar enough with the allegations to recognise the soldier described in the stories. He would later swear in an affidavit that he knew Roberts-Smith might be called before the war crimes inquiry or wish to lodge a defamation claim. “I also wanted to ensure that [Seven West Media] could obtain advice about the allegations, so it could form its own view about them,” he said. “It was funding [Robert-Smith’s] legal bills at that time and employed him in a senior executive position and would face scrutiny over any controversial matters relating to a senior employee.”
McWilliam is a 40-year media veteran who once advised Kerry Packer and Rupert Murdoch, and is practised in the art of making problems disappear. “He’s like Mr Wolfe in Pulp Fiction, that calm, dapper guy who gets rid of the dead body from the back of the car and hoses it out,” a former executive told Good Weekend in 2017.
As a close friend of then prime minister Malcolm Turnbull, McWilliam was also extremely well-connected. He called Ross Coulthart, a former 60 Minutes journalist then working for corporate spin doctor Sue Cato, and asked him to investigate the allegations, including Roberts-Smith’s response to each of them, and package them into a report that should be addressed to Roberts-Smith’s lawyers but given only to himself. Coulthart completed the report two weeks later.
When McKenzie learned about the report, he was ropeable. “Who are you working for?” he asked Coulthart. “Is it Seven?” Coulthart declined to answer. Instead, he sent a text message to McKenzie’s boss, James Chessell, then executive editor of The Age and the Herald. Coulthart said his sources had convinced him that the stories published by the newspapers were wrong. “I’m happy to sit down with you for an off-the-record chat but I don’t want to get yelled at by Nick McKenzie just because I’m doing him a favour by offering to help fix a looming disaster for him and the paper.”
Ross Coulthart (left) compiled a report on the allegations against Ben Roberts-Smith for Seven executive Bruce McWilliam, and (right) The Age and Sydney Morning Herald’s award-winning journalist Nick McKenzie.Credit:The Age
By this time, Roberts-Smith had already outed himself as the subject of the reports in an interview with The Australian denying the allegations. On August 11, Masters, McKenzie and Wroe confirmed his identity in a story under the headline “Beneath the bravery of our most decorated soldier”. On August 17, Roberts-Smith filed defamation proceedings.
When the AFR coined the phrase “trial of the century” in December 2020, it tipped the proceeding to last for “an epically long” eight weeks and Nine’s costs to land at $3 million.
By the time Roberts-Smith closed his case on Friday, the court had sat for 14 weeks and cost Nine $15 million, and Roberts-Smith is likely to have spent nearly as much. It has cost taxpayers several million dollars to have two barristers and multiple solicitors and Defence staff attending court every day.
The statistics tell the story: 98 days of evidence, 41 witnesses, 6186 pages of transcript, 267 tender items, 125 subpoenas issued, 63 notices to produce, 36 judgments - and the main one still to come.
“It’s totally unprecedented,” one lawyer working on the case said. “There’s never been a case like this.”
Some of the evidence was crazy. The court heard allegations that Roberts-Smith had hidden files on USB sticks that he buried in a child’s lunchbox in his backyard. A private investigator gave evidence that Roberts-Smith asked him to tail his mistress to an abortion clinic and play barman at a Seven West Media party to eavesdrop on what other executives thought about him. One soldier said the allegation that Roberts-Smith kicked a prisoner off a cliff in Afghanistan first appeared as a drawing on a whiteboard at the Tarin Kowt base. In it, Roberts-Smith was depicted as a winged penis.
It also yielded evidence that may prove useful to Australian Federal Police officers investigating allegations of war crimes. One of Roberts-Smith’s witnesses was approached by officers after he finished giving evidence, resulting in an altercation that landed him behind bars when he had been hoping to hop on a plane leaving the country.
The trial was interrupted for months by the pandemic and nearly lost some of its witnesses due to the advance of the Taliban in Afghanistan. The video link from Kabul went down when the law office’s generator ran out of diesel. The trial’s duration had a knock-on effect on others. Nine had planned to use the same barristers in its defence against a defamation claim by actor Craig McLachlan. But when that trial started before the Roberts-Smith trial finished, it was hastily forced to assemble a replacement team. The trial even outlived a federal government, with the new Attorney-General required to make urgent decisions about releasing further ADF documents in the case.
And as the proceedings continued to rack up tens of thousands of dollars in costs each day, the physical wellbeing of the two barristers running the case – and particularly Justice Anthony Besanko – assumed increasing importance, lest the trial was forced to start over. When Besanko cleared his throat, the court jumped. COVID-19 was the third adversary, lurking behind the courtroom door.
The final evidence was given on Thursday. Submissions are due next month, then the judge goes away to work out who won, who lost and who pays the bill. That could take some months more.
Besanko, who lives in South Australia, probably wants to go home. It is nearly a year to the day since the trial opened and no amount of back-channelling can influence the evidence now.
His biggest task is just beginning.
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