The case in courtroom 18D: Ben Roberts-Smith defamation case set for momentous 12-week trial | Ben Roberts-Smith


In the quiet formality of court 18D of Sydney’s federal court, one of the most decorated soldiers in the history of Australia’s military will this week swear an oath, sit in the witness box, and begin giving evidence about what he saw and did during the war in Afghanistan.

Ben Roberts-Smith, the former SAS corporal and recipient of both the Victoria Cross and Medal for Gallantry, begins defamation proceedings against three Australian newspapers on Monday.

He is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of ­reports published in 2018 which he alleges are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes including murder.

Roberts-Smith, 42, has consistently denied the allegations, saying they were “false”, “baseless” and “completely without any foundation in truth”.

In his statement of claim – a legal filing detailing his allegations against the newspapers – Roberts-Smith said the articles carried defamatory imputations that he, “while a member of the SAS regiment, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him … [and] disgraced his country Australia, and the Australian army by his conduct”.

Roberts-Smith’s statement said he had been “greatly injured” by the publication of the articles, and that his “business, personal and professional reputation has been and will be brought into public disrepute, odium, ridicule and contempt”.

He is seeking damages, including aggravated damages, interest and costs.

The newspapers will run a truth defence to their reporting.

Their defence to Roberts-Smith’s statement of claim states that Roberts-Smith is “a person who broke the moral and legal rules of military engagement; a bully; a hypocrite in that he held himself out publicly in a manner not consistent with how he conducted himself within the SASR; and a person not deserving of the good reputation he enjoyed publicly”.

The newspapers’ defence details a series of alleged unlawful actions, including that on 11 September 2012, in a village called Darwan, he had kicked an Afghan civilian named Ali Jan, who was unarmed, bound in handcuffs and kneeling, off a cliff before ordering him shot.

The defence also alleges that on Easter Sunday 2009, Roberts-Smith shot a man with a prosthetic leg.

The prosthetic leg was “souvenired” from his body and taken back to the Australians’ base, where it was used as a drinking vessel in the unauthorised soldiers’ bar, the Fat Ladies’ Arms. Pictures of soldiers drinking beer from the leg are in widespread circulation.

Roberts-Smith’s lawyers have previously told the court he did shoot a man with a prosthesis, who was a Taliban soldier, but that the leg had been taken back to the base by another soldier and that Roberts-Smith did not “souvenir” the leg or drink from it. The lawyers told the court that Roberts-Smith thought it was “disgusting” to souvenir a body part, albeit an artificial one, from someone who had been killed in action.

The newspapers’ defence alleges Roberts-Smith committed or was complicit in other murders during his time in Afghanistan, and also alleges the corporal bullied and assaulted fellow soldiers, as well as Afghan civilians.

The newspapers also allege that in 2018 Roberts-Smith punched a woman with whom he was having an extramarital affair, in the face, blackening her eye, and then pressured her to lie about the incident.

The newspapers have withdrawn one allegation of murder against Roberts-Smith, which involved Roberts-Smith swimming across a river and allegedly shooting an Afghan man.

The newspapers will contend the killing took place but will no longer contend it was unlawful. Four paragraphs of its defence have been withdrawn.

Ben Roberts-Smith to take the stand

Justice Anthony Besanko will hear the case, without a jury, in the federal court. It is slated to run for eight weeks, but will likely run longer, potentially for three months.

The witness list runs to more than 70 people, including: Roberts-Smith’s estranged ex-wife Emma Roberts (formerly a witness for the soldier, now giving evidence against him); Afghan civilians whose family members were killed during military raids; and former soldiers who served alongside Roberts-Smith, who will be compelled by subpoena to say what they did and what they saw.

While most of the evidence will be heard in open court, the case raises obvious national security concerns, and some elements will be heard in camera.

Besanko has directed that Roberts-Smith present his evidence first.

The case will be opened by the veteran defamation lawyer Bruce McClintock SC, in one of his final cases before retirement.

And sometime during the first week, Roberts-Smith himself will take the stand, as the very first witness.

On the eve of his trial, Roberts-Smith’s parents said the allegations against their son “have not only destroyed Ben’s life, but have affected us every day for the last several years”.

“We never expected that our son would be unfairly attacked in this manner after he served his country in Afghanistan with distinction and risked his life. We are very proud of him for the father and son that he is. We love and care for him like every parent loves and cares for their child.”

Roberts-Smith’s father Len is a Major-General in the Australian army, and a former judge of appeal of the Western Australia supreme court.

Consequences are acutely personal

The consequences of this case can scarcely be underestimated. Already, months of work, and millions of dollars, have been poured into both sides’ legal endeavours.

A win for the newspapers would be seen as a victory for public interest journalism, and for the Australian public’s right to know what is being done in its name and with its money.

But should the newspapers lose, beyond legal costs already estimated at $3m and a potentially massive bill for aggravated damages, the media’s enthusiasm for public interest investigative journalism may be significantly diminished.

For Roberts-Smith, once Australia’s father of the year, the consequences are acutely personal.

A win will be claimed as vindication of his vociferous and consistent denials of the allegations against him, a restoration, he would hope, of his former reputation.

If he loses, his public standing will be irreparably damaged. He will be seen by many in Australia as a war criminal.

While it will not be a criminal conviction, that remains, still, a potential outcome of an ongoing investigation by the newly formed office of the special investigator, who will closely observe this trial.

And beyond that, at an even more base level, Roberts-Smith could lose the physical medals that had distinguished his military career, if not the honorifics themselves.

He has offered his medals, including his Victoria Cross, as collateral to fund his defence.

Deeply polarised media landscape

The contest is broader too. This defamation case has pitched Australian media empires in scarcely concealed battle, and drawn in storied institutions such as the Australian War Memorial.

Two of the newspapers being sued, the Age and the Sydney Morning Herald, are now owned by Nine Entertainment.

Roberts-Smith’s benefactor and backer is media baron Kerry Stokes, the chairman of the Seven West Media TV and newspaper network, one of Nine’s key competitors.

West Australian Stokes is an avowed military buff and has close links to the Perth-based SAS. Roberts-Smith, having left the military, works for Stokes as the managing director of Seven West’s Queensland operations, but has stood down for the duration of the trial.

And it is Stokes who has bankrolled Robert-Smith’s defamation suit, reportedly for almost $2m, agreeing to provide a loan to fund his employee’s action.

If Roberts-Smith does not win, and cannot repay the loan, he will forfeit his medals.

Stokes has said, in that case, the medals will be donated to the Australian War Memorial in Canberra, of which he is chairman.

But this could present the war memorial with a potentially invidious dilemma.

Presented with that scenario, the memorial would have to consider whether it could, in good conscience, display the medals of a soldier a judge has believed killed unarmed, bound non-combatants, essentially “bought” for the memorial by its own chairman.

The Roberts-Smith allegations have exposed, in stark relief, the massive fault lines that exist in Australia’s deeply polarised media landscape.

Stokes’s Seven TV network and his newspaper the West Australian have been consistent and full-throated in their defence of Roberts-Smith, casting the allegations as without credibility or motivated by malice. Rupert Murdoch’s News Corp has also been supportive.

Nine and the public broadcaster, the ABC, have continued to publish story after story, allegation after allegation, weathering attacks from opposition media, lawsuits from those accused, and highly public raids by police investigators.

Military whistleblowers, where they have been identified, have been pursued by police with charges.

At stake, also, is the very history of Australia’s involvement in its longest war.

After 20 years of grinding, wearing fighting, Australian troops are withdrawing from Afghanistan, following the US out of the infamous graveyard of empires.

The Taliban is resurgent, deadly violence is commonplace on the streets of Afghanistan’s cities, and peace, elusive in that place for generations, remains as far away as it has ever been.

And in a courtroom in Sydney on Monday morning, one reckoning of that war begins.



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