The seven words that ended Ben Roberts-Smith’s $1.5m appeal bid

The dismissal of Ben Roberts-Smith’s defamation appeal was clinical in its execution.

One by one, Federal Court Justice Nye Perram, on behalf of the full bench, brushed the disgraced soldier’s claims into a dustpan, and tipped them into the bin.

Ben Roberts-Smith has lost his appeal over the finding that he is a war criminal.Credit: Sam Mooy/Michael Howard

Dozens of sleepless nights, thousands of hours of work, millions of dollars in costs.

Lawyers estimate Roberts-Smith’s bid to overturn the court’s 2023 finding that he was a war criminal set both sides back a combined $4 million, coming on top of the $30 million spent on the original 110-day hearing.

A late bid to re-open the appeal last month alone contributed $1.5 million to the total.

Perram dispensed of it in seven words: “The application should be dismissed with costs.”

This judgment was not preceded by the same white-knuckled wait as for the original judgment, when a heaving courtroom sweated over whether the quietly spoken Justice Anthony Besanko would be persuaded that the strength of the evidence met the gravity of the accusations.

Besanko could have been forgiven for dismissing even a strong suspicion that the decorated Afghanistan veteran was a war criminal. Much bolder to leap from private intuition to public certainty.

Then Roberts-Smith’s team had turned up to the judgment in force, from the loftiest barrister to the merest legal deckhand, matched on the other side of the court by Nine’s in-house and out-of-house lawyers, a silken team of barristers, a phalanx of editors and the two journalists at the centre of the case: Nick McKenzie and Chris Masters.

Ben Roberts-Smith’s lawyer Monica Allen departs the Federal Court on Friday, but the former soldier was nowhere to be seen.Credit: Sam Mooy

Only Roberts-Smith was nowhere to be seen.

This occasion was more drizzle than sizzle, and the attendees and absentees spoke volumes about their predictions on which way the Full Court of the Federal Court would rule.

Roberts-Smith again elected not to meet his fate; he is rumoured to be overseas. His lead barrister, Arthur Moses SC, was also conspicuous in his absence.

He sent in his place a junior barrister who nobody remembered attending any of the hearings, behind whom sat Roberts-Smith’s longstanding solicitor Monica Allen.

Nine sent a full team of lawyers, but no McKenzie, who had been wounded by the emergence of a secret recording of him claiming to Roberts-Smith’s ex-lover that he had access to the ex-soldier’s legal strategy.

Roberts-Smith’s lawyers argued that the recording was sufficient grounds to re-open the appeal, and for the first time in his 23-year career, McKenzie was subjected to cross-examination in court. His integrity, and that of Nine’s legal team who were accused of using improperly accessed material, was on the line.

But in dismissing the application, the Federal Court exposed the recording as a siren call.

Roberts-Smith had dared to hope that it would discredit his nemesis McKenzie, change the course of the litigation and lead to his redemption.

Instead, he was another million dollars worse off, and the evidence that he committed war crimes in Afghanistan did not budge. Not one jot.

Because the next words uttered by Perram were that it was the unanimous view of the full bench of the Federal Court that the whole appeal should be dismissed, and one side of the room seemed to swell.

As Perram left the bench, Minter Ellison solicitor Peter Bartlett, who has been handling the matter for The Age, the Sydney Morning Herald and the Canberra Times since its inception, emitted small noises of relief. Some of the lawyers were in tears. They milled and hugged.

Roberts-Smith’s lawyers gave tight smiles and left the building.

Each of the four murders that Besanko held to have occurred in his original judgment remained intact. And so did the integrity of McKenzie, whose evidence was found to obtain no significant contradictions or implausibilities.

Roberts-Smith released a statement outlining his intention to appeal to the High Court.

“I continue to maintain my innocence and deny these egregious spiteful allegations,” he said.

Two winters have passed since the Federal Court found that on the balance of probabilities, Roberts-Smith was a murderer and a war criminal.

The folk who sleep in the St James train tunnels not 100 metres from where Masters and McKenzie stood on the steps of the court and claimed vindication have swapped out their sleeping bags for pop-up tents.

McKenzie has moved on to stories of corruption elsewhere. Nicholas Owens SC, who fought the original case for the newspapers, has been appointed a judge.

Roberts-Smith is still shaking his fist at the sky.

Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.