Ben Roberts-Smith loses defamation case

A Federal Court judge has thrown out Ben Roberts-Smith’s defamation claims against three newspapers and three journalists, Nick McKenzie, Chris Masters and David Wroe.

Roberts-Smith VC, Australia’s most decorated living soldier, alleged the Age, the Sydney Morning Herald and the Canberra Times defamed him in their reporting, and falsely portrayed him as a war criminal and murderer who “broke the moral and legal rules of military engagement”.

In Sydney’s Federal Court this afternoon Justice Besanko found the newspapers established the substantial truth of many of the imputations, including allegations of murder.

He also found the news organisations had established contextual truth on allegations of domestic violence and bullying of an SAS colleague.

“In light of my conclusions each proceeding must be dismissed,” he said.

Roberts-Smith has been awarded no damages in the judgment. Lawyers for the newspapers have sought several weeks for applications around costs of the trial. Those costs are expected to run into the tens of millions of dollars. Sources close to the case have suggested the cost of the case could have run as high as $35m.

The civil judgment is likely to cost Roberts-Smith millions of dollars in costs to be awarded to the newspapers. The cost of the trial is estimated to be upwards of $35m.

Roberts-Smith is General Manager of Seven Queensland but stepped aside in April 2021 to focus on the legal case.

The former SAS corporal had taken out a loan, believed to be $2m, from a company owned by his employer, Seven Chairman Kerry Stokes, to fund his defamation case.

“Ben remains on leave and will review the judgment with us and make a decision on his future in the near future,” a Seven spokesman said.

“We will make no further comment at this time.”

Seven Chairman Kerry Stokes said, “The judgment does not accord with the man I know.

“I know this will be particularly hard for Ben, who has always maintained his innocence.

“That his fellow soldiers have disagreed with each other, this outcome will be the source of additional grief.

“I haven’t had a chance to have a discussion with Ben as yet, but I will when he has had a chance to fully absorb the judgment.“

Roberts-Smith is reportedly currently in Bali.

The judgment is not a criminal finding of guilt, but a determination on the civil standard of the “balance of probabilities”.

Statement by James Chessell, Nine’s Managing Director, Publishing /  Tory Maguire, Executive Editor, The Sydney Morning Herald and The Age:

“We welcome the Federal Court’s judgement that investigations by The Age and The Sydney Morning Herald were correct in their reporting that Ben Roberts-Smith committed war crimes.

“The finding by Justice Anthony Besanko today that Roberts-Smith participated in the execution of Afghans confirms our reports that the Victoria Cross recipient breached the Geneva Convention, and is a critical step towards justice for the families of the murder victims.

“The judgement is a vindication for journalists Nick McKenzie and Chris Masters, who began reporting this difficult and complicated story more than seven years ago.

“It is a vindication for the many people in our newsrooms and our organisation who supported this important public interest journalism.

“And, most importantly, it’s a vindication for the brave soldiers of the Australian Defence Force’s SAS who served their country with distinction and then had the courage to speak the truth about what happened in Afghanistan.

“Nick McKenzie and Chris Masters painstakingly pieced together these investigations, and today’s judgement exemplifies how the exhaustive public interest journalism of The Age and The Sydney Morning Herald serves our community.

“The series of stories at the centre of this trial will have a lasting impact on the Australian Defence Force and how our soldiers conduct themselves during conflict.

“Today is obviously a pivotal moment in this story and we are very pleased with the result – but it’s critical to acknowledge that it goes on beyond this judgement. We will continue to hold people involved in war crimes to account.

“The responsibility for these atrocities does not stop with Ben Roberts-Smith.

“Publishing a story of this magnitude is never easy, but high quality investigative journalism is vital to a thriving democracy.

“Nine’s unequivocal backing of this reporting and our defence of it is a clear demonstration of its commitment to quality journalism.”

MEAA Media Federal President Karen Percy said:

“This is an important case upholding the media’s important role in undertaking public interest investigations and the public’s right to know.

“But it highlights how Australia’s defamation laws have worked to constrain investigative journalism and attack legitimate reporting.

“This case began in 2018 and has come at immense personal cost to both Nick McKenzie and Chris Masters, and at great financial cost to their media outlets. Yet today’s finding is a vindication of their journalism.”

This post updates.

Source: Guardian, ABC