Ben Roberts-Smith defamation trial ends after 110 days, millions in costs

Allegations made against Ben Roberts-Smith in his Federal Court defamation case are based on “mere suspicion, surmise and guesswork” and should be rejected, his barrister has submitted on the final day of the trial.

Public hearings in the war veteran’s defamation case against The Age, The Sydney Morning Herald and The Canberra Times concluded on Wednesday after 110 days, 41 witnesses and more than $25 million in legal costs.

Ben Roberts-Smith outside the Federal Court in Sydney last week.Credit: Kate Geraghty

Justice Anthony Besanko reserved his decision and will deliver a written judgment at a later date.

“I’d like to thank counsel for their submissions,” Besanko said. “The parties will be advised when I’m in a position to hand [my judgment] ... down.”

Arthur Moses, SC, acting for Roberts-Smith, urged the court to reject the newspapers’ truth defence, telling the court that allegations of war crimes levelled against his client had their genesis in the “corrosive jealousy” of a handful of his former Special Air Service comrades. The media outlets’ case was based on “mere suspicion, surmise and guesswork”, he said.

“On the first day of this trial, we submitted that this was a case about a man who had shown great courage, great devotion to duty, great self-sacrifice and great skill in soldiering,” Moses said. “We also said that it was a case about corrosive jealousy ... lies and rumours. We contend we’ve made good each of these propositions.”

Moses said a “war of words” had erupted between Roberts-Smith, a former SAS corporal, and some of his former comrades after he was awarded the Victoria Cross, Australia’s highest military honour, in 2011 for his actions in a 2010 battle in Tizak, Afghanistan.

He said the evidence revealed those men had embarked upon a campaign of rumour and innuendo against Roberts-Smith and the newspapers’ journalists had “jumped on the rumours like salmon jumping on a hook” and published them as fact.

Moses rejected an allegation, made by the newspapers in court, that Roberts-Smith and four of his witnesses had colluded to give false testimony about one alleged incident, and said the evidence demonstrated a “clear absence of collusion”.

Roberts-Smith launched defamation proceedings against the media outlets in August 2018 over a series of six articles published that year. He alleges the newspapers wrongly accused him of war crimes, bullying fellow soldiers, and an act of domestic violence against a former lover.

Besanko will rule on whether those meanings were conveyed by the articles. The newspapers seek to rely on a defence of truth to any of the meanings found to have been conveyed.

As part of their truth defence, the newspapers allege Roberts-Smith was involved in the murder of five unarmed Afghan prisoners between 2009 and 2012, contrary to the rules of engagement that bound the SAS.

Moses said Roberts-Smith had no motive for the alleged killings.

But Nicholas Owens, SC, acting for the media outlets, told the court on Wednesday that Roberts-Smith had a “motive to kill [suspected] Taliban insurgents, regardless of the lawfulness of doing so”, and that this intention had been revealed in alleged comments to comrades during training exercises in Australia.

Owens pointed to evidence given during the trial that Roberts-Smith told a fellow soldier during pre-deployment training in Australia to perform a mock execution of an Afghan prisoner and told his patrol on another occasion that anyone suspected of being an enemy combatant would be taken into a room and shot. Roberts-Smith denies making those comments.

Owens maintained that Roberts-Smith and four of his witnesses, all of whom are anonymised, had engaged in a concerted effort to give false evidence during the trial.

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