Roberts-Smith faces court
Ben Roberts-Smith is a person in control. His tone is flat, his words deliberate. He speaks in full, audibly punctuated sentences. His pauses, which are frequent, are filled by the captive silence that has sat over courtroom 18D for a fortnight.
During the four-day first act of his defamation case, he revealed that when he suspected his girlfriend of faking a pregnancy, he had a private investigator track her to an abortion clinic. When he feared the media were tapping his calls, he bought burner phones and prepaid SIM cards. When he was an elite soldier in Afghanistan, he king-hit a colleague for making an error on the battlefield.
Roberts-Smith is suing three newspapers and facing the longest trial in Australian defamation history. He is seeking the biggest damages bill ever paid in this country. On the seventh day of the trial, his barrister, Bruce McClintock, SC, appearing in his last case before retirement, asked why Roberts-Smith had brought the action:
“Mr Roberts-Smith, have you enjoyed these proceedings? Have you enjoyed having to relive the events in Afghanistan? Was it enjoyable recounting events at Tizak? At Whiskey 108? Or Darwan?”
These names are a road map to some of the bloodiest battles fought by Australia’s Special Air Service, the regiment Robert-Smith belonged to, during the war in Afghanistan. It was in fig orchards at Tizak that Robert-Smith won his Victoria Cross, the highest award the army gives.
Now those names have become metonyms for the war crimes – the violent bashings and murders – that The Sydney Morning Herald, The Age and The Canberra Times allege Roberts-Smith committed while deployed.
Investigative journalists Nick McKenzie, Chris Masters and David Wroe published these allegations in three articles in 2018, also accusing Roberts-Smith of bullying and domestic violence.
After hours of stark, detailed evidence on Wednesday, Roberts-Smith finally lost control. He began to weep. The articles had “ruined” his life, destroyed his lucrative public speaking career, made him terrified to face the world.
So no, he said, there was nothing to enjoy in these proceedings.
“All I can try and do is fix the legacy for my children. That’s why I’m here.”
Roberts-Smith has been in the court since last Thursday, the tallest person in a cramped room 18 floors above Phillip Street, Sydney, never designed for the public intrigue this case has created.
Three rows of lawyers crowd the front of the court, in a flurry of bar jackets, trolleys, jabots and bundles.
The newspapers’ barrister is Nicholas Owens, SC. He has never before appeared in a defamation case but is a top commercial silk. McClintock, his opposite number, is a defamation specialist, known for representing high-profile clients, such as Geoffrey Rush. He often wins.
Facing the throng is Justice Anthony Besanko, who has sat on the Federal Court since 2006.
There are no pictures of Besanko online and his biography on the Federal Court’s website is just three lines long. A judge with no publicity has been entrusted with a trial about publicity, itself embroiled in publicity.
Justice Besanko must manage that carefully, because the case is awash with state secrets. That is why the federal government has lawyers in the room.
Most army documents are classified, including the so-called “rules of engagement” that tell soldiers such as Roberts-Smith when they can and cannot kill.
Also suppressed are the names of other SAS soldiers and some other witnesses, who are identified only by numbers.
Twice already the court has been closed for “national security” reasons, about a day-and-a-half in total. More closures are a certainty.
The six Afghan men, say the newspapers, were persons under control. The newspapers allege Roberts-Smith murdered them or was complicit in their murder.
The persons under control – PUCs, as the army calls them – posed no threat, the newspapers say.
“None, not a single one of the six murders Mr Roberts-Smith [is alleged to have committed] were made in the heat of battle,” Owens told the court last Thursday.
The newspapers will spend weeks of this trial trying to prove their claims are true. If they can, they have a defence to defamation.
For Roberts-Smith, most of the past week was a pre-emptive strike on the newspapers’ case. The source of the claims against him, he said, were jealous SAS members, bent on cutting down a “tall poppy”.
He and McClintock then took the war crime allegations one by one.
Had he watched on while another soldier “blooded” a new recruit by forcing him to execute an elderly Afghan? No, Roberts-Smith said, the claim was “completely ridiculous”.
Had he thrown a Taliban fighter with a prosthetic leg to the ground and then machine-gunned him to death? No. Again, the claim was “ridiculous”.
Had he captured an Afghan teenager who was “shaking like a leaf”, pulled out his 9mm pistol and shot the boy in the head? Did he later say the execution “was the most beautiful thing I’ve ever seen”? No.
An observer might think Roberts-Smith was the one on trial. Even his second barrister, Arthur Moses, SC, speaks of courtroom 18D as though it were a war crimes tribunal. “At the end of the day,” he said in a separate case management hearing, “the case … is about whether [Roberts-Smith] murdered people and committed war crimes.”
Roberts-Smith takes a different view: for him the claim of domestic violence – that he punched his then girlfriend, identified as Person 17, in the face – is at least as weighty as the alleged war crimes.
Again, Roberts-Smith denies the claim. Person 17 drunkenly fell down the stairs at a Parliament House veterans’ function, the court was told, hitting her head. Roberts-Smith took her to their room at Canberra’s Hotel Realm, gave her icepacks and monitored her vital signs. He did not punch her, he said.
What effect did the domestic violence claim have on him, McClintock asked.
“That particular allegation, I feel, coupled with being called a war criminal, has ruined my life.”
Roberts-Smith said the allegation of domestic violence was “the end of my public speaking business”. It haunts him. “Now I walk down the street, people will look at me. The first thing I think of is, they think I’ve hit a woman.”
In June 2018, the first article appeared in The Sydney Morning Herald. The piece claimed, in gory detail, that an SAS soldier had kicked a bound and defenceless shepherd, Ali Jan, from the top of a cliff, smashing his teeth out and then ordering his execution.
The soldier was dubbed “Leonidas”, a reference to an ancient king of Sparta who, in the movie 300, slays an unarmed ambassador by kicking him down a well.
Roberts-Smith was not named in the article. But on the morning it appeared, he was swamped with phone calls.
“Everyone”, Roberts-Smith said, was asking “whether I was Leonidas”.
One call came from Brendan Nelson, former Liberal opposition leader and then director of the Australian War Memorial.
“I had his full support,” Roberts-Smith said on Wednesday. “He was disgusted with what had been written. And he had identified [the article] had been talking about me.”
Nelson then dismissed the allegations as “just media”.
The media now has the rest of this trial to show why their allegations shouldn’t be dismissed so lightly.
They will call scores of witnesses, including 21 former and serving SAS members. Some, by their own admission, are war criminals.
A handful of witnesses will come from Roberts-Smith’s personal life. Person 17, his ex-girlfriend, will testify that he punched her after the Canberra veterans’ night.
Emma Roberts, Roberts-Smith’s estranged wife, who was once slated to appear for her husband, will now take the stand for the newspapers.
What she will say is unclear. But Roberts-Smith’s legal team is clearly concerned: on the eve of the main trial, they launched a separate action against her, accusing her of accessing her husband’s confidential emails.
Then there are the army witnesses. Person 1 will testify that Roberts-Smith bullied him. Person 16 will say that Roberts-Smith bragged about shooting an Afghan teenager in the head.
The soldiers’ version of events will be “diametrically opposed” to Roberts-Smith’s own, Owens said in his opening address. And, the barrister said, it is impossible to believe the men are lying:
“Some of these witnesses were involved in crimes themselves. Is it really to be supposed that a man himself would confess to murder just so as to give vent to some jealousy over a medal?”
These witnesses will be called once Roberts-Smith leaves the stand. That may not happen until late next week; his own evidence has finished, but he is now in the throes of cross-examination.
His case will be probed for weak points, for example his strange behaviour in the articles’ aftermath, when he used burner phones to call former colleagues and stored thousands of documents on USB drives, only handing them to the court when his claim was well under way.
There are innocent explanations for all of this, Roberts-Smith says.
The coming weeks will show whether Roberts-Smith’s case can survive – and whether he can keep his narrative in control.
This article was first published in the print edition of The Saturday Paper on Jun 19, 2021 as "Roberts-Smith faces court".
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