A judgement has been reached in the defamation trial brought by former soldier, Ben Roberts-Smith, concluding one of the most expensive trials in Australian media history.
Today, at Australia’s federal court in Sydney, Justice Anthony Besanko awarded a win to the newspaper publisher, Fairfax, stating the majority of its claims were “substantially true”. Among these claims was that Roberts-Smith was indeed responsible for unlawful killings of unarmed Afghans.
Fairfax failed to prove that two matters were substantially true, but succeeded in establishing a contextual truth defence in relation to those matters.
The full details of the ruling are delayed until the Commonwealth can review the announcement to ensure there is no inadvertent disclosure of information that threatens national security.
Judge Besanko ultimately dismissed the case brought by Roberts-Smith.
Among the accusations found to be substantially true, was one in which Roberts-Smith kicked a handcuffed prisoner off a cliff in Darwan in 2012. Roberts-Smith then ordered a colleague to shoot the man dead.
Another incident pertained to ordering a junior soldier to execute an elderly man hiding in a tunnel in an effort to “blood” the rookie. One further incident related to murdering a disabled man with a prosthetic leg, then using the leg as a drinking vessel.
There were also a further three incidents of assault on unarmed Afghans, as well as an incident of bullying a fellow soldier.
It was also found that Roberts-Smith “broke the moral and legal rules of military engagement”, making him a criminal.
In 2019, Roberts-Smith accused Fairfax media (now part of Nine Entertainment) and three of its journalists of defamation for levelling accusations of alleged war crimes against him.
The verdict reached today was handed down more than four years since the trial commenced, and over a year since it adjourned in April 2022.
A significant part of the trial pertained to a number of civilian deaths during the war in Afghanistan. Per the newspapers’ accusations, Roberts-Smith was allegedly complicit in the unlawful killings of these civilians.
Roberts-Smith denies any wrongdoing.
In a landmark defence, Fairfax—on behalf of three of its newspapers: The Age, the Sydney Morning Herald and the Canberra Times—claimed its reporting was “substantially true”. The publisher was required to prove on the balance of probabilities (i.e. a greater likelihood) that Roberts-Smith was indeed involved in the civilian deaths.
The trial occurred largely within a closed court, meaning many details were censured and could not be relayed to the public. The delicate nature of the trial, which potentially contained national security risks, led to costly and highly private proceedings.
As reported by The Guardian, the case totalled more than $35 million—a cost which would most likely be borne by the losing party.
Prior to the release of the verdict, the Commonwealth requested the federal court delay its announcement in order for it to review the verdict to ensure it did not inadvertently disclose national security information.
It is expected an appeal will be launched. Justice Besanko has allowed an extension for the time period permitted for an appeal, extending this to 42 days.
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