Commander to courtroom: Why Ben Roberts-Smith’s reputation is on the stand

In 2012 Ben Roberts-Smith, then lauded as the most highly decorated Australian soldier of our time, spoke candidly of his boyhood dreams. In a flattering interview with Men’s Fitness magazine, he revealed how “I used to love reading war stories about men who had won the VC [Victoria Cross] and had always looked up to them”.

The military was in his blood, he said. Four of his ancestors had landed at Gallipoli. His father Len, a prominent judicial figure, had also served in the military and for a time worked as Judge Advocate General for the Australian Defence Force.

Ben Roberts-Smith in Afghanistan when he was a corporal in the Special Air Service regiment.Credit: Australian Defence Force

Roberts-Smith’s boyhood dream came to pass. In January 2011, as a member of the army’s storied Special Air Service Regiment, he stood proudly before then Governor-General Dame Quentin Bryce as she pinned the Victoria Cross to his khaki-clad breast during a ceremony at the regiment’s home base, near Perth.

The citation for the nation’s highest gallantry award noted “selfless actions in circumstances of great peril”. During an assault on a heavily fortified enemy position in Afghanistan’s war-torn Kandahar province, Roberts-Smith, it was said, drew fire away from his pinned-down comrades at a critical juncture.

Roberts-Smith had attained the pinnacle of military glory. But the golden glow was soon to start leaching away, replaced by a gathering cloud of suspicion.

By 2015 a steady drum-beat of rumours about unlawful killings and other misdeeds allegedly committed by a small number of rogue Australian special forces operators in Afghanistan was gaining traction inside military circles, underpinned by work done with soldiers by sociologist, Dr Samantha Crompvoets.

The stakes, for any of the parties, could hardly be higher.

Following the launch of a high-stakes external inquiry by the Inspector-General of the Australian Defence Force in 2016 – a probe later known as the Brereton inquiry, after Justice Paul Brereton who was appointed to carry it out – a series of explosive revelations also began to emerge in The Age, The Sydney Morning Herald, and The Canberra Times, all then owned by Fairfax Media.

The stories, in June and August of 2018, had been heavily researched by two of the nation’s top investigative reporters, veteran Chris Masters and The Age’s Nick McKenzie, both highly awarded individuals in their own right, assisted at one point by then Fairfax defence writer David Wroe.

Masters had been the first and only reporter to be embedded with Australian Special Forces in Afghanistan. He had interviewed hundreds of those soldiers about their dangerous and clandestine missions and was finalising a book on the subject, entitled No Front Line when he and McKenzie joined forces.

The pair’s work lit what would prove to be a long fuse. In late August 2018 Roberts-Smith launched defamation proceedings against the three mastheads and the three journalists. Two-and-a-half years of pre-trial skirmishing would follow. Only now is the case approaching its climax, with the trial starting before Justice Anthony Besanko in the Federal Court in Sydney on Monday.

The stakes, for any of the parties, could hardly be higher. Roberts-Smith, who denies the allegations, says the mastheads have portrayed him as a criminal who broke the “moral and legal rules of military engagement” and disgraced not only himself but his regiment, the army and his country.

He is also suing over additional claims of bullying and an allegation that he committed an act of domestic assault on a woman with whom he was having an extra marital affair. (She will be referred to during the trial as person 17, as she told the court she feared for her safety if her name was made public).

Lawyers for The Age and the Herald, now owned by Nine Entertainment, contest some of the imputations claimed by Roberts-Smith. They also say the soldier was not identified in some of the articles. But overall they will seek to prove that the key allegations are substantially true.

Their defence flags an intention to show that Roberts-Smith was either the perpetrator or was complicit in up to six unlawful killings in Afghanistan, including that of an unarmed Afghan farmer named Ali Jan and the death of another male whose prosthetic leg was later used as a drinking vessel back at the SAS base.

Ben Roberts-Smith (left) with a then-colleague drinking from the prosthetic leg of a dead Afghan man in 2012.

The Age and Herald’s journalists and lawyers say these were not “fog of war” situations, but killings carried out in a calculated fashion in circumstances where the victims posed no threat to the soldiers, thus breaching the international rules of warfare to which Australia is legally bound.

Melbourne barrister Matt Collins, QC, – who is not involved in the proceedings - says the coming contest will be the “biggest in living memory” and will, in effect, be a “war crimes trial masquerading as a defamation action”.

It is set to run for a record 10 weeks or so – far longer than most defamation cases – with costs tipped to run into the millions, possibly tens of millions of dollars by the time the parties have exhausted all avenues of appeal. Dozens of witnesses will be called, many former or serving SAS troops.

Roberts-Smith’s livelihood as well as his reputation is on the line. He’s taken leave from his current job as general manager of the Seven network in Queensland to fight the case. His boss, and Nine’s media rival, head of the Seven West empire Kerry Stokes, is firmly in the war veteran’s corner, bankrolling the legal action with a loan to Roberts-Smith from Stokes’ private investment company Australian Capital Equity.

Ben Roberts-Smith, who has been employed by Seven West Media since 2014, and Kerry Stokes. Credit:

Stokes, a noted collector of military memorabilia, is also chair of the Australian War Memorial and has close ties to the SAS, which is headquartered near his home town of Perth.

Nine for its part is acutely aware of its financial exposure in the case, and of the need to protect its reputation for delivering difficult and courageous public-interest investigative journalism .

There is a human cost to this too. For McKenzie and Masters, copping copious abuse on social media from those who will never countenance their heroes doing any wrong comes with the job.

But speaking in a recent podcast, McKenzie reflected on the “human wreckage of those who had done the right thing”, referring to the SAS soldiers and their special forces colleagues, the commandos, who had spoken up. “There are careers that are destroyed, men who are broken,” McKenzie said.

On the legal side, some of the biggest names and personalities in the business will be taking centre-stage. They include, on the Roberts-Smith team, Sydney-based solicitor Mark O’Brien and Bruce McClintock, SC, who have engaged in some much-publicised legal stoushes against Fairfax in the past, including the Eddie Obeid saga.

Joining them at the bar table will be Arthur Moses, SC, who has been managing Roberts-Smith’s interactions with the Defence Department, giving the silk an unparalleled level of insight into the case.

The publishers’ legal team includes the Melbourne-based defamation veteran Peter Bartlett, one of the country’s top minds in the field, paired with Nicholas Owens, SC, defamation specialist Lyndelle Barnett and former Balkans war crimes prosecutor Christopher Mitchell.

There is also an array of agencies – each fielding their own legal teams – which are likely to seek periodic interventions in the trial on the grounds of national security or ongoing parallel investigations.

The Australian Federal Police launched two probes of their own into Roberts-Smith in 2018, on the basis of which they’ve already referred some matters to the Commonwealth Director of Public Prosecutions and have revived a third inquiry into the ex-soldier’s alleged intimidation of a witness.

Also keeping a hawk-like eye on proceedings will be the Inspector General of the ADF and the Office of the Special investigator (OSI) set up by the federal government late last year to pursue possible prosecutions related to wrongdoing by soldiers. So far the names of those targeted by the OSI have been kept under wraps.

Some will inevitably be among the witnesses called during the trial. They’ll be known by numbers, not names. No journalist or photographer will be allowed to see their faces, only hear their voices, and they will be given special entry and exit routes into the courts. They will be allowed to invoke immunity for themselves but that won’t apply to others implicated by their evidence.

The Age's Nick McKenzie.Credit:

“This will be an unusual defamation case in that some of the witnesses themselves are the subject of potential criminal proceedings and potential murder charges,” points out one legal observer who did not want to comment publicly.

McKenzie says “it’s really important to know that the evidence that comes up in this trial will no doubt be scooped up by those other agencies as they search for the truth”.

Roberts-Smith’s estranged former wife Emma has also been drawn into the vortex. Emma Roberts was initially expected to be a witness for her ex-husband but will now testify for the media outlets, sparking a pre-trial clash between the legal teams.

On Tuesday, Roberts-Smith launched an eleventh hour legal strike against his former spouse in the Federal Court, having previously threatened to revisit a property settlement between the pair if she spoke to lawyers acting for the media outlets about potential evidence she might give in support of their case.

In April, McKenzie upped the stakes with a report in The Age, the Herald and 60 Minutes alleging that Roberts-Smith had hidden USB sticks containing images and documents relevant to the trial inside a child’s lunch box, which he buried in the backyard of the home the couple once shared. Roberts-Smith has denied taking this action. The former soldier’s lawyers claimed this week that these items were given to the reporter by Emma Roberts, a claim Nine’s legal team has refuted.

One of the images allegedly hidden in the lunch-box, showing Roberts-Smith (back, left) carousing with comrades in the Fat Ladies Arms bar in Afghanistan.

Both sides have had wins and losses in the pre-trial jousting over evidence and witness line-ups, though the media outlets believe they have come out better overall in those contests. However one enormous blow for The Age and Herald’s legal team was the loss of defamation barrister Sandy Dawson, SC, forced out of the case due to illness several months ago.

Another challenge will be wrangling its critical Afghan witnesses. In a world blighted by COVID-19, they will have to give their testimony from the offices of a legal firm in Kabul, against the background of a sharply deteriorating security environment.

The Roberts-Smith side has had its share of setbacks too, most recently the revelation that Quentin Bryce, the former Governor-General, would not be testifying for the former soldier, despite his lawyers having included her on their witness list.

The battle for the hearts and minds of the public has also been playing out in the media arena , with a number of News Corp publications proving favoured outlets for Roberts-Smith’s backers. Sky TV has provided a ready platform for commentators such as the onetime War Memorial chief and former defence minister Brendan Nelson, who in late 2018 told viewers “we have to believe in our heroes and it’s not the place of media outlets to tear them down”.

Samantha Crompvoets' report into alleged SAS abuses led to Australia's biggest war crimes probe.Credit: Dean Sewell

What has given comfort to Nine is what it says is the growing weight of contextual evidence which has emerged since Roberts-Smith first launched his case, a development which he’s unlikely to have factored into his original decision to sue.

Crompvoets’ 2015-2016 cultural review of the special forces unearthed alarming stories of competition killing and blood-lust, of cover-ups and concocted stories among a clique of rogue operators whose more senior officers were either unaware or unable to pull them into line.

That became the trigger for the Brereton inquiry which, after interviewing 423 witnesses and poring over tens of thousands of images and documents, reached its bombshell conclusion late last year that 25 unnamed current or former soldiers had been involved in at least 23 incidents of war crimes, leading to the deaths of 39 individuals who were either unarmed civilians or who had been rendered incapable of combat at the time they were killed.

Australia’s “good” war had turned bad. Or, as Masters put it in his book, what eventually “rose in the dust” was “a sense of menace, disappointment, and lost opportunity”.

Brendan Nelson posed the question “where lies the national interest in tearing down our heroes?”

Allan Behm, a former Defence official who now heads the Australia Institute’s international and security program, has an answer.

“We are a democracy, and we have a set of values.” he says. “Being licensed to use lethal force has to be done on the basis of very clear moral guidelines and legal principles. Without that … if we condone abuse of the kind where our soldiers can in our name go out and murder people ... we are being not only fraudulent but defeating the whole strategic purpose of being there.”

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