‘Corrosive jealousy and lies’ behind Ben Roberts-Smith war crime claims, court told

Former special forces soldier Ben Roberts-Smith’s reputation was destroyed by a campaign fuelled by bitter and jealous soldiers who made allegations of war crimes to The Age and The Sydney Morning Herald, his barrister has alleged on the first day of his high-stakes defamation trial.

Sydney defamation barrister Bruce McClintock, SC, acting for Mr Roberts-Smith, told the Federal Court on Monday that the case was about “courage, devotion to duty [and] self-sacrifice”, on the one hand, and “dishonest journalism, corrosive jealousy, cowardice and lies”, on the other.

Ben Roberts-Smith walks into Federal Court for the defamation trial.Credit: Edwina Pickles

An allegation that Mr Roberts-Smith had killed an Afghan teenager and then boasted to another soldier about it in 2012 was “far fetched” because it was the kind of thing only an “ostentatious psychopath” would say.

Mr McClintock said Mr Roberts-Smith’s reputation had been destroyed by a campaign led by “bitter people” in the Special Air Services who were “aided by credulous journalists”.

He alleged “a number of soldiers had developed enormous jealousy towards my client”, and “some might call it tall poppy syndrome”. Some soldiers expected to give evidence for the media outlets might be “confused, mistaken or have false memories because of the trauma”, Mr McClintock added.

Mr Roberts-Smith, a Victoria Cross recipient, launched the defamation lawsuit in 2018 over reports that he says accused him of murder during his 2009 to 2012 tour of Afghanistan and committing an act of domestic violence against a woman with whom he was having an extramarital affair. Along with the two media outlets now owned by Nine, he is suing three journalists and The Canberra Times, which is now under separate ownership.

Barrister Bruce McClintock, SC, outside the Federal Court on Monday.Credit: Edwina Pickles

Mr Roberts-Smith denies all wrongdoing. The media outlets are relying chiefly on a defence of truth. The trial is expected to run for up to 10 weeks.

In a lengthy opening address that is expected to continue into Tuesday, Mr McClintock rejected as “ridiculous” an allegation that Mr Roberts-Smith shot an Afghan teenager in the head in 2012 and told a fellow soldier “I shot that c--- in the head ... It was the most beautiful thing I’ve ever seen”.

“It’s like [actor] Robert Duvall in Apocalypse Now. It’s Colonel Kilgore on ice. It’s insane. It’s the sort of thing that would be said by an ostentatious psychopath,” Mr McClintock said. “He’s not that.”

A still of Roberts-Smith from video taken by Channel Seven.Credit: Channel Seven

He said Mr Roberts-Smith was an exceptional soldier; competent in battle and effective at engaging in killing. Some in the community might “blush” at the characterisation of killing as a virtue, he said, but, if so, their quarrel was with the government who sent young people to war.

He quoted former British Prime Minister Winston Churchill, who is said to have remarked: “We sleep soundly in our beds because rough men stand ready in the night to visit violence on those who would do us harm.”

Mr Roberts-Smith killed many insurgents, he said, as did other Australian soldiers.

“War is violent,” Mr McClintock said, and “the simple fact is that some who have reported on matters concerning my client have forgotten that fact ... in their rush to tear him down.”

He said the soldiers had “no way of knowing” whether a person was an insurgent or an ordinary villager in Afghanistan because “they didn’t wear uniforms; they didn’t carry a sign saying ‘insurgent’.”

Ben Roberts-Smith’s parents, Len and Sue, at the NSW Federal Court.Credit: Brook Mitchell

The trial is expected to hear about the killing of a suspected Afghan militant who had a prosthetic leg in April 2009. The leg was allegedly used as a beer drinking vessel at the SAS base in Afghanistan.

Mr McClintock told the court in 2019 that Mr Roberts-Smith “never drank from that thing … because he thought it was disgusting to souvenir a body part, albeit an artificial one”.

But he said on Monday this was “my mistake” and Mr Roberts-Smith did not drink from the leg because it was “closely associated” with a soldier to whom he didn’t want to lend “approval or credence”.

He added that drinking from the prosthetic leg of a dead enemy might appear to be in “bad taste” but “in the scheme of human wickedness it does not ... rate terribly high”. Allowances must be made for men who had engaged in the extremity of armed combat who needed to decompress, he said.

He said the allegation that Mr Roberts-Smith punched a woman with whom he was in a relationship between late 2017 and early 2018 was false and the former soldier “absolutely abhors” violence against women.

The allegation caused his client “terrible damage”, Mr McClintock said. It justified an award of aggravated damages on top of the usual compensatory damages because “if anything” it was this allegation that caused him to lose his public speaking business.

In late May the media outlets withdrew one element of their truth defence, related to the alleged killing of an unarmed Afghan. They had initially described the killing as murder. The newspapers are still seeking to prove that Mr Roberts-Smith killed that unarmed man, and committed six murders.

Mr McClintock said it was “absolutely outrageous” to withdraw the murder allegation with “no apology”, and it also warranted aggravated damages.

Part of Mr McClintock’s opening address is expected to be held behind closed doors to preserve the secrecy of national security information. Mr McClintock foreshadowed this would take “the better part” of Tuesday.

The hearing continues.