After 98 days and $25 million in legal costs, the evidence has now concluded in one of the most protracted, complex and costly defamation trials ever conducted in Australia – and, fittingly, it played out in the Federal Court in Sydney, the world’s defamation capital.
War veteran Ben Roberts-Smith’s lawsuit, dubbed in some quarters a “war crimes trial masquerading as a defamation action”, has left every corner of his life exposed, from his actions on key missions in Afghanistan to his extramarital affair, his unusual dealings with a private detective, and the disintegration of his marriage.
The evidence at the trial concluded on Thursday. More than 40 witnesses appeared over 12 months, either side of a six-month COVID hiatus. Roberts-Smith will officially close his case on Friday. Dozens of military witnesses gave evidence with their identities obscured to protect national security information. Much of the testimony was heard behind closed doors to avoid disclosing wartime tactics and intelligence.
Next month, Federal Court Justice Anthony Besanko will hear the parties’ closing submissions before writing what is likely to become one of the defining judgments of his career.
At the opening of the trial in June last year, Roberts-Smith told the court his “life has been ruined” by seven articles published by The Age, The Sydney Morning Herald and The Canberra Times between June and August 2018. The articles, he said, wrongly accused him of heinous crimes, including the unlawful execution of prisoners while deployed in Afghanistan between 2009 and 2012, and assaulting a lover during an alleged row in Canberra in 2018.
While a separate inquiry by the Inspector-General of the Defence Force into allegations of war crimes and misconduct by Australian soldiers was well under way by 2018, and criminal prosecutions may yet flow from it, no charges have been laid to date. So, war crimes investigators have watched closely in the defamation case as the newspapers sought to rely chiefly on a defence of truth. The media outlets allege Roberts-Smith was complicit in the murder of six Afghan prisoners, and proving any one of those six alleged crimes would be sufficient to win the case.
The 43-year-old former SAS corporal is seeking a damages payout that is likely to be in the millions of dollars, if Besanko finds in his favour. Actor Geoffrey Rush holds the record for the highest defamation payout to a single person in Australia, at $2.9 million. The bulk of that payout was the value of lost career opportunities, and Roberts-Smith told the court he missed out on a lucrative partnership at consulting firm PwC after the first tranche of articles.
Ben Roberts-Smith’s barrister Bruce McClintock SC arrives at Federal Court in Sydney in June last year.Credit:Dylan Coker
But the case, filed in August 2018, has racked up an estimated $25 million to date in combined legal costs. Roberts-Smith has taken leave from his job as general manager of Channel Seven Queensland during the trial, and Seven West Media chairman Kerry Stokes is bankrolling his lawsuit using private funds.
In his opening address to the court, Bruce McClintock, SC, one of Roberts-Smith’s phalanx of barristers, said false stories about his client murdering prisoners in Afghanistan were constructed by people who had either “developed enormous jealousy” towards his client or were so traumatised by war as to be confused. He said the domestic violence allegation, also vehemently denied, had a separate and distinct defamatory “sting”.
Ben Roberts-Smith’s parents Len and Sue arrive at the Federal Court in Sydney in July last year.Credit:Edwina Pickles
Roberts-Smith, son of former West Australian Supreme Court judge Len Roberts-Smith, was awarded the Victoria Cross, Australia’s highest military honour, in 2011 for his role in a highly publicised battle at Tizak, Afghanistan, in 2010. The honour made him a “tall poppy”, Roberts-Smith believed, and put a target on his back among disgruntled SAS soldiers.
His supporters are well-known. Former federal defence minister Brendan Nelson, chair of the Australian War Memorial, made a brief appearance in court, describing Roberts-Smith as “the most respected, admired and revered” Australian soldier in more than half a century.
But Nicholas Owens, SC, acting for the newspapers, poured scorn on the “implausible” suggestion that SAS witnesses would fabricate their testimony about Roberts-Smith “as a result of jealousy or the product of trauma”.
Brendan Nelson and Ben Roberts-Smith.Credit:Andrew Meares
The media outlets allege Roberts-Smith was involved in the murder of six Afghan prisoners, contrary to the rules of engagement that bound the SAS. The unlawful executions took place over five days in 2009 and 2012, the newspapers allege, and the mastheads called 20 serving and former SAS soldiers to give evidence.
Roberts-Smith has denied wrongdoing. He said five of the killings happened lawfully in battle, while the sixth killing did not happen. He, in turn, called 12 current and former SAS witnesses.
Nicholas Owens, SC, is representing Nine newspapers against a defamation claim by Ben Roberts-Smith.Credit:Edwina Pickles
Justice Besanko would have to sift truth from lies, Owens told the court. To win the case, which is a civil rather than criminal trial, the newspapers would need to prove on the balance of probabilities – meaning it is more likely than not – that Roberts-Smith was complicit in at least one murder.
While this is less onerous than the criminal standard of proof beyond reasonable doubt, the so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in making grave findings.
The alleged murders
Of the six murders alleged by the newspapers, three form the backbone of the case. First, the newspapers allege Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in Darwan on September 11, 2012, before he was shot dead.
The village of Darwan. Afghan witnesses and former SAS soldiers have given evidence about the alleged actions of Ben Roberts-Smith while serving there.
Roberts-Smith told the court there was “no cliff” and “no kick”. The man in question was not a farmer but a suspected Taliban “spotter” reporting on the movement of coalition forces, he said, and both he and a soldier dubbed Person 11 lawfully fired shots at the man in a cornfield. Person 11, a friend of Roberts-Smith, supported this account.
But a former SAS comrade, Person 4, gave evidence he was with both men that day and saw Roberts-Smith kick the cuffed man off a cliff before he heard shots fired, then saw Person 11 with his rifle raised. Another former soldier, Person 56, said that either Person 4 or Person 11 disclosed after the Darwan mission that “an individual had been kicked off a cliff and ... shot”.
Three Afghan villagers also told the court via audiovisual link from Kabul that the man killed was Ali Jan, a Darwan farmer who was not connected to the Taliban, and that a “big soldier” kicked him off a cliff.
In the second centrepiece allegation, the newspapers say Roberts-Smith was involved in two murders during an earlier mission on Easter Sunday, 2009, after two Afghan men were discovered in a tunnel in a compound dubbed Whiskey 108. They allege Roberts-Smith killed one of the men himself and directed a “rookie” soldier, Person 4, to kill the second man as a form of “blooding” or initiation.
Photo of the tunnel at Whiskey 108, tendered in Ben Roberts-Smith’s Federal Court defamation case.
Here again, Justice Besanko must choose between diametrically opposed accounts. There were no men in the tunnel, Roberts-Smith and four of his SAS friends have told the court. Separately, the troop commander on that mission, Person 81, said he was not informed that men were found in the tunnel. He couldn’t say, however, that there were none. A former soldier dubbed Person 27 said he did not have “any recollection” of men being found.
Roberts-Smith said two insurgents, not prisoners, were killed lawfully outside Whiskey 108, including one by him. He does not dispute that the man he killed had a prosthetic leg, nor that the leg was souvenired by another soldier and used as a drinking vessel at the SAS base. He did not drink from it himself, he said, but he didn’t object to the “gallows humour” of others doing so.
In a dramatic turn, one of Roberts-Smith’s witnesses was arrested and charged with harming and resisting a Commonwealth official in the hours following his turn in the witness box, after he was approached by detectives enquiring into allegations of war crimes. He was granted bail in April.
An aerial photo of Whiskey 108 marked up in court by Ben Roberts-Smith during his Federal Court defamation case.
A starkly different account of the Whiskey 108 mission was given by five men called by the newspapers. A serving SAS soldier, Person 41, told the court he saw Roberts-Smith execute an unarmed Afghan prisoner that day and direct Person 4 to kill a second prisoner. Person 4 objected to answering questions about Whiskey 108 on the grounds of self-incrimination.
Another serving SAS soldier, Person 14, told the court he witnessed an unidentified Australian soldier that day throw a human-like object to the ground and shoot it with a “distinctive” machine gun, the F89 Para Minimi. On closer inspection he realised the object was an Afghan man with a prosthetic leg, Person 14 said, and he saw Roberts-Smith had a Minimi later that day.
Two more serving SAS soldiers, Person 40 and Person 42, said that between two and three men were taken from the tunnel at Whiskey 108, while a former SAS soldier, Person 43, said he was involved in capturing an elderly Afghan man in the tunnel.
Of the remaining three murder allegations, one hit an evidentiary roadblock. The newspapers alleged in their defence that Roberts-Smith directed a soldier, dubbed Person 66, to kill an Afghan prisoner in 2012 as an exercise in “blooding” him. However, Person 66 objected to giving evidence on the grounds he would self-incriminate if he did so, and Besanko did not compel him.
Former assistant defence minister Andrew Hastie, an ex-SAS captain, told the court he believed Person 66 had been “blooded” during a mission in October 2012, although he was not an eyewitness to any shooting. Owens told the court “it is possible for me to win this case” without proving this alleged murder, but that the evidence of Person 66 might have formed part of an “independent path home to victory”.
It leaves the judge with two other murder allegations to consider. First, the newspapers allege Roberts-Smith shot a young Afghan prisoner in 2012 and boasted to a fellow soldier that it was “the most beautiful thing I’ve ever seen”. A former SAS soldier dubbed Person 16 told the court that he saw the “baby-faced” prisoner, and that Roberts-Smith told him he had shot him in the head. But Person 11, one of Roberts-Smith’s friends, denied the prisoner was shot, and Roberts-Smith has said the prisoner was released.
Second, the newspapers allege Roberts-Smith directed an Afghan soldier, via an interpreter, to shoot another prisoner in 2012 or direct one of his subordinates to do it. Roberts-Smith denies giving that direction. Person 14, a serving soldier, has told the court he witnessed the alleged incident, but Roberts-Smith and a series of his friends said the Afghan soldier could not have been there on the day in question. (Two of Roberts-Smith’s friends later admitted to making mistakes about this issue relating to the complicated story of shooting a dog).
The domestic violence allegation
On Roberts-Smith’s case, the “false allegations of murder” in the newspapers’ stories were followed by “false allegations of domestic violence”, to use McClintock’s turn of phrase. The court has heard Roberts-Smith had ended a turbulent six-month affair with a woman dubbed Person 17 by the time the first of the newspaper articles was published. The married former soldier said he did not object to the use of the word “affair” but he was separated from his wife at the time, a claim disputed by his estranged wife Emma Roberts.
Emma Roberts outside the Federal Court in Sydney in February.Credit:Brook Mitchell
Roberts, giving evidence for the media outlets, told the court her husband’s lover arrived unannounced at the marital home in April 2018 with a “black eye” and revealed the affair had just come to an end.
Person 17, whose identity was suppressed by the court on safety grounds, gave evidence that Roberts-Smith punched her on the left side of her face and eye following a dinner in Parliament House in Canberra in March 2018 after she embarrassed him by falling down the stairs while drunk at the venue and bumping her head. Roberts-Smith rejects the allegation, and a former Army officer at the dinner has said he witnessed Person 17 fall down the stairs and sustain a “very large haematoma on the left side of her forehead above her eye”.
It is not in dispute that Roberts-Smith hired a private investigator, John McLeod, to follow Person 17 to a Brisbane abortion clinic earlier in 2018. Roberts-Smith said he wanted to check whether she was telling the truth about a pregnancy because he suspected she was lying. Person 17 ultimately told the court she did not have an abortion but had a miscarriage.
Private investigator John McLeod told the Federal Court about the collapse of his long-standing friendship with Ben Roberts-Smith. Credit:Peter Rae
McLeod, a former police officer, agreed he tailed Person 17. He said his relationship with Roberts-Smith soured in late 2018 when the former soldier asked him to lie and take the blame for a series of allegedly threatening letters that were sent to another soldier. Roberts-Smith has denied he was behind the letters.
“I said, ‘f--- that, you weak dog’,” McLeod told the court. In a trial dominated by witnesses who could neither be identified nor observed by reporters, McLeod was a rare burst of colour.
But it will be on the sombre detail, and no doubt shades of grey, that Justice Besanko will train his forensic eye. His decision may take some time.
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