Ben Roberts-Smith is a war criminal
For the days and weeks leading up to the judgement, the nerves of the parties, their lawyers, the media in general and the court itself were seriously fraying.
It was arranged for Justice Anthony Besanko to read a summary of his judgement to the world at large via the Federal Court YouTube channel.
The Commonwealth government applied for a delay in the release of the full text of the reasons, so it could be combed and checked in case any state secrets from the national security vault might have escaped.
There he was, the judge who held the weight of oversized hopes and expectations in his hands. The Fates were at work assigning destinies, by which men might rise or fall.
Ben Roberts-Smith did indeed fall catastrophically, with implications for all the brassy efforts that go into celebrating military escapades and derring-do.
What happens to all those Victoria Cross hero posters slung around the Australian War Memorial?
Before the judgement was finally read, there was more than a touch of greasepaint about the entire enterprise. When the curtain went up on Justice Besanko, however, you knew you were going to get a reckoning that was measured and serious.
The trial began with the sort of purple flourishes you’d expect from Sydney’s Phillip Street. Bruce McClintock, SC, for Roberts-Smith in his opening submission, almost two years ago to the day, evoked the heroism of his client by deploying a quote often attributed to Churchill: “We sleep soundly in our beds because rough men stand ready in the night to visit violence on those who would do us harm.”
The case for the three newspapers, The Sydney Morning Herald, The Age and The Canberra Times, and their three journalists, was that the readiness to visit violence so the rest of us can stay asleep should at least be conducted within the rules of war.
Their defence was one of truth in response to a volley of defamatory meanings pleaded by Roberts-Smith for a series of articles in June and August 2018, including: he broke the moral and legal rules of military engagement; he disgraced his country and the army; he murdered unarmed civilians and combatants; he bullied Australian soldiers; he threatened to report a trooper to the International Criminal Court; and he committed domestic violence.
Professor David Rolph from the University of Sydney Law School quickly pointed out that by pleading substantial truth rather than statutory qualified privilege, the focus of the trial was on the conduct of Roberts-Smith rather than the conduct of the journalists.
That proved to be a worthwhile strategy.
Where the truth was wanting in relation to two aspects – domestic violence and threatening the trooper – the defence of contextual truth won the day, a breakthrough for a defence that now needs to be draped with aiguillettes.
In the background, a reputation campaign was being run for Roberts-Smith. Former 60 Minutes journalist Ross Coulthart was commissioned to write a report on the allegations by publicity firm Cato & Clive. Multiple positive stories appeared in the News Corp papers, puffing the Roberts-Smith cause to their eternal embarrassment. Even on Thursday, an online report in The Australian declared: “Victoria Cross recipient ‘did not bash his mistress’.”
Five years, $25 million-plus in costs and 41 witnesses later, here we are. For Roberts-Smith, his life has been on hold, while in the courtroom he was unveiled as a bully, a brute, a liar, someone who conspires with witnesses and a murderer.
There was a suggestion that the award of his Victoria Cross in 2011 was a political gesture designed to boost morale among the troops who were bogged down in a flailing campaign.
To say Besanko’s judgement summary was not a gobsmacking moment for the media is to understate the pain and suffering dished out by the Federal Court in numerous media misadventures.
Successive “reforms” to the “uniform” defamation acts have supposedly been designed to rebalance the law so that defendants only have one hand tied behind their back, not two plus their feet manacled.
Yet, decisions by judges have all interpreted the legislation against the interests of media defendants: removing the cap on damages; shredding the limitation period so plaintiffs can bring cases out of time; and requiring reasonableness to be a standard of perfection for journalism.
You can imagine how the as-yet-untested public interest journalism defence will go in the hands of judges with ingrained sceptical predispositions towards the media.
At a recent meeting with media lawyers, a judge who sits on defamation cases gaily remarked that the press liked being paraded in court because the publicity increased readership.
While this was met with astonishment, it was not entirely said in jest.
From this epic wrestle between Roberts-Smith and the press much bigger issues are at stake. There is an assault on Australia’s idea of the noble Digger, even one who celebrated swilling beer from the prosthetic leg of a shot captive and has been sponsored by a friendly billionaire benefactor with a reverence for the warrior class.
For the newspapers that staked the shareholders’ money on the case, it was about defending the honour of their publications and the work of journalists who researched and dug and said the truth would support what they wrote.
If the public can’t discover what has been done in its name, then what sort of country are we?
Some of the case hung by threads, with the judge determining the conflicts of evidence and who was more or less believable.
There was an occasion during the trial where Nicholas Owens, SC, the media’s barrister, said he believed there was an “independent path home to victory” if one particular witness was compelled to give evidence.
He was identified as Person 66, a new soldier that the now shadow Defence minister Andrew Hastie believed was “blooded” on a 2012 mission in Syahchow, as a result of being allegedly ordered by Roberts-Smith to kill one of two detainees. The judgement said Nine newspapers had not established the particulars of truth with respect to that claim, but the defence of contextual truth was made out.
Person 66 refused to give evidence. His barrister, Jack Tracey, said to do so would have a tendency to implicate his client in the commission of an offence – the offence being murder.
Justice Besanko declined to compel Person 66 to give evidence, even after being offered a privilege under the Evidence Act – and so that thread was broken but, as it turned out, not fatally so.
Costs are the other wicked element in these epic struggles. It might be remembered that Joe Hockey in 2015 sued Fairfax Media over the “Treasurer for sale” story in three of the company’s mastheads.
He won some of the case – the bits relating to promotional tweets and posters – and lost three-quarters of it. He asked for $1 million and was awarded $200,000 in damages, chickenfeed that would have been swallowed by costs claimed by Fairfax for those parts of the case it successfully defended.
So, costs can be the hidden enemy of a partially successful applicant.
The Roberts-Smith litigation was marked by its own series of personnel changes and tragedies. The late Sydney silk Sandy Dawson, SC, was originally briefed to take the case for Fairfax (now Nine Entertainment), but he became seriously ill and had to surrender the work to Owens, a newcomer to the defamation bar.
Throughout, Peter Bartlett and his team at MinterEllison had the herculean task of assembling witnesses – even those in Kabul who gave evidence remotely as the Taliban closed in – getting the case ready for trial and keeping it on track.
On the other side, McClintock opened the batting for Roberts-Smith, but his retirement from the bar came towards the end of the proceedings, when Arthur Moses, SC, and Matthew Richardson, SC, took over.
What happens now? An appeal, of course – and God alone knows what might happen at the hands of Federal Court appeal judges. In the meantime, Nine is chasing indemnity costs – it wants Kerry Stokes to stump up for all of its lawyers’ fees, after he bankrolled Roberts-Smith’s.
We don’t know for sure whether Ben Roberts-Smith was mentioned in the Brereton report into war crimes, which was redacted. However, we know he was given a “potentially affected person” notice, which signals possible adverse findings about which he could make submissions before the report was finalised.
Conceivably, the Office of the Special Investigator could come to him in due course.
For journalists Nick McKenzie, Chris Masters and David Wroe, who did the work, and defended it with excruciating dedication to detail, there is a big, fat sigh of relief, tears and a few Parfait Amours at the local. Good, revelatory journalism can and should continue. Editors no longer have to surrender the entire newspaper to lifestyle and scrambled egg recipes.
This article was first published in the print edition of The Saturday Paper on June 3, 2023 as "Ben Roberts-Smith is a war criminal".
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