Ben Roberts-Smith: A war-crimes trial masquerading as defamation action

Defamation trials frequently pierce the public’s consciousness. Many will remember former treasurer Joe Hockey’s pursuit of this masthead over stories that probed political donations and campaign fundraising.

Superstars Rebel Wilson and Geoffrey Rush attracted global attention when they brought cases against Bauer Media and the Daily Telegraph.

Actress Rebel Wilson arriving at the Supreme Court with Matt Collins QC during her high-profile defamation action.Credit: Penny Stephens

You would need to have been living under a rock not to have known of former attorney-general Christian Porter’s defamation case against the ABC and reporter Louise Milligan, discontinued earlier this week.

But no defamation trial in living memory is bigger than Ben Roberts-Smith’s, set to commence in the Federal Court in Sydney on Monday.

These trials are fascinating because they are the juridical stage on which great clashes of fundamental rights, often involving powerful interests on both sides, play out.

Plaintiffs bring defamation actions in order to protect their reputations. Recall the ninth commandment – thou shalt not bear false witness against thy neighbour – and Cassio’s lament in Othello – ″⁣Oh, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.”

Defendants – often media organisations and their journalists – seek to justify any damage they have done by resort to their right to freedom of expression or, to articulate it as if the media’s own interests were not in play, but the public’s right to know.

The law is arcane and highly technical, crying out for wholesale reform, but only ever tinkered with periodically by timid parliaments made up of politicians who are, in turn, regular plaintiffs in defamation actions.

While there is no consensus as to how the balance between the rights to reputation and freedom of expression ought to be struck, some propositions are uncontroversial. Incalculable damage to reputation can be done by the publication or broadcast of defamatory content.

Damage is generally proportional to the seriousness of the imputations and the extent of dissemination. Freedom of expression is a fundamental value in any democracy, but not all speech is deserving of equal protection. Greater latitude should be accorded to speech that is in the public interest, because it is integral, for example, to the decisions we make at the ballot box, the exposure of public misfeasance, or uncovering hypocrisy.

Former soldier Ben Roberts-Smith has been accused of committing heinous crimes, including murder, on the battlefields of Afghanistan.Credit: Getty

There is, however, a difference between content that is in the public interest and content that interests the public, and a gulf between responsible investigative journalism and base smears.

Ben Roberts-Smith is the tallest of tall poppies; a handsome Victoria Cross winner and highly decorated soldier turned successful businessman. Roberts-Smith’s central complaint is that, in a series of articles on the pages of this and other Nine mastheads by journalists Nick McKenzie, Chris Masters and David Wroe – themselves highly decorated in their field – he has been accused of committing heinous crimes, including murder, on the battlefields of Afghanistan. The publishers’ principal defence is one of truth.

When the 10-week trial begins on Monday, Justice Anthony Besanko, sitting without a jury, will hear evidence about Roberts-Smith’s standing in the community, before attention turns to whether the publishers can prove the imputations they published about him to be true.

In some ways, this is a war crimes trial masquerading as a defamation action, conducted under the peculiar rules of engagement that apply in defamation law. On the one hand, like a prosecutor, the publishers bear the burden of proof, but to the lower civil standard. Roberts-Smith’s case will fail if the publishers can prove, on the balance of probabilities, that the imputations their stories conveyed are matters of substantial truth.

Unlike the position in a criminal trial, Roberts-Smith has no practical right to silence. In order to explain the damage to his reputation, he will give evidence and be exposed to cross-examination.

Relative to the position of the prosecutor in a criminal trial, these matters favour the publishers. On the other hand, the publishers have available to them none of the coercive powers that are deployed by police and prosecutors in criminal investigations. They are powerless to execute search warrants or conduct interviews with uncooperative witnesses.

There has been no committal hearing to tease out and test the evidence. The publishers do not have access to the wealth of material generated during relevant investigations conducted by the Brereton inquiry, the Australian Federal Police and the Office of the Special Investigator. These matters favour Roberts-Smith.

Overlaid on all of that, the trial will examine events that occurred years ago on the other side of the world and that are properly the subject of national security limitations. Parts of the trial will be heard in camera, others in open court. The continuing global pandemic means that key witnesses will give evidence by video-link from Afghanistan through interpreters. Police will be closely monitoring the trial.

Roberts-Smith is reportedly being bankrolled by Kerry Stokes, chairman of Nine’s bitter rival, the Seven Group. The costs to both sides will be eye-watering – millions of dollars each – and disproportionate to the damages that Roberts-Smith could reasonably expect to be awarded even if he is wholly successful.

The Roberts-Smith trial will not test the outer boundaries of defamation law. It will, to my mind, be proof of the defamation lawyer’s aphorism that it’s truth or nothing; and the layperson’s aphorism that, in most litigation, the only real winners are the lawyers. But the stakes for both sides could not be higher. It will be a compelling contest.

Dr Matt Collins AM QC is a Melbourne barrister. He represented Nine in the action brought by former treasurer Joe Hockey, and Rebel Wilson in her action against Bauer Media.