For almost exactly a year, Australia watched as a parade of current and former special forces soldiers known only by their pseudonyms trooped into the Federal Court in Sydney to give evidence in the defamation trial of the century.

Claiming to have had his life ruined by six articles published by The Age, The Sydney Morning Herald and The Canberra Times, Australia’s most decorated living soldier, Victoria Cross and Medal of Gallantry winner Ben Roberts-Smith, was seeking to clear his reputation.

He said the stories wrongly accused him of unlawfully killing prisoners during the Afghan conflict. The newspapers sought to prove that the reports published between June and August 2018, were, in the legal phrase, substantially true.

For 14 COVID-interrupted weeks the court under Justice Anthony Besanko heard the defamation trial at an estimated cost of $25 million to the parties. There were 110 days of evidence, 41 witnesses, 6186 pages of transcript, 267 tender items, 125 subpoenas issued, 63 notices to produce and 36 interim judgments. Most of the witnesses for and against Roberts-Smith were former Special Air Services soldiers. All were given pseudonyms to protect their identities.

The main judgment – ruling on the question of whether the newspapers defamed the war hero, or if he is, in fact, a war criminal – was handed down on Thursday, June 1, 2023. The judge found overwhelmingly for the newspapers, finding Roberts-Smith was, on the balance of probabilities, a murderer, a war criminal, a bully and a disgrace to his country and the Australian military.

So what were the key allegations in the case? Why did it cost so much and go so long? And why did this masthead go to so much trouble for the story?

What did the articles say Roberts-Smith did?

The three news outlets’ original pleadings in the case alleged that Roberts-Smith directly murdered, or was complicit in the murder of, six Afghan prisoners. They acknowledged during the case that one of these alleged murders could not be proven because the soldier concerned would not give evidence on the grounds he might incriminate himself. Under the laws of war, Australian soldiers were not allowed to kill a person who was disarmed and “under control”, even if they were the most dangerous Taliban fighter in Afghanistan.

Murder 1: The articles reported that Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in the village of Darwan on September 11, 2012, before he ordered two other soldiers to drag the man under a tree. There, according to one of the two soldiers, the man was stood up and then shot dead. The victim, they say, was a farmer. Roberts-Smith told the court there was “no cliff” and “no kick”. The man in question was a suspected Taliban “spotter” reporting on the movement of coalition forces, he said, and he and another soldier had lawfully fired shots at the man in a cornfield. The judge ruled the newspaper’s report to be true.

Murders 2 and 3: The articles say that, on a mission three years earlier on Easter Sunday, 2009, two Afghan men were discovered in a tunnel in a compound dubbed Whiskey 108. They allege the men were made prisoners and then Roberts-Smith killed one of them himself and directed a “rookie” soldier to kill the second as a form of “blooding”, or initiation.

Roberts-Smith and his witnesses say no one was found in the tunnel, but instead that two insurgents, not prisoners, were killed in action outside the Whiskey 108 compound, one of them by Roberts-Smith himself. Nobody disputes that the man Roberts-Smith killed had a prosthetic leg, nor that the leg was souvenired by another soldier and used as a drinking vessel called “Das Boot” at the SAS base. Roberts-Smith described this during the trial as gallows humour. The judge found the newspapers had proven both these murders took place.

Murder 4: The newspapers said in court that in 2012 Roberts-Smith also directed an Afghan soldier, via an interpreter, to shoot another prisoner or direct one of his subordinates to do it. Roberts-Smith denied giving that direction. A number of witnesses for Roberts-Smith at the trial all said the Afghan soldier could not have been there because he had been stood down after shooting a dog. These witnesses later conceded this alibi evidence was wrong. The judge found the murder proven.

Incident 5: The newspapers alleged that Roberts-Smith directed a soldier to kill an Afghan prisoner in 2012 in another blooding incident in a place called Syahchow. This allegation hit an evidentiary roadblock and was not further explored after the soldier who allegedly pulled the trigger objected to giving evidence on the grounds of self-incrimination. The judge found this allegation was not established.

Incident 6: The newspapers allege Roberts-Smith shot a young Afghan prisoner in 2012 in a place called Fasil, and boasted to a fellow soldier that it was “the most beautiful thing I’ve ever seen”. A former SAS soldier gave evidence that Roberts-Smith had told him that he had shot a “baby-faced” prisoner in the head. Another soldier denied this, saying during the trial the prisoner had instead been released unharmed. The judge found this allegation was not established.

Roberts-Smith’s case was that all the soldiers and former soldiers who gave evidence against him were motivated by “enormous jealousy” because of his medals, or were so traumatised by war as to be confused. As one of his silks, Arthur Moses, SC, put it: the “sensationalist” publications were based on rumour, hearsay and contradictory accounts from jealous and obsessed former colleagues, including politician and former SAS officer Andrew Hastie.

The mastheads made another allegation too: that Roberts Smith punched a woman, with whom he was having an extramarital affair, in the face following a dinner in Parliament House in Canberra after she embarrassed him by falling down stairs while drunk and bumping her head.

Roberts-Smith rejected the allegation, and a former Army officer at the dinner gave evidence that he saw the woman fall and sustain a “very large haematoma on the left side of her forehead above her eye”.

The judge said there was not enough reliable evidence that the assault had occurred but that, because Roberts-Smith’s reputation had been so damaged by the other findings that he was a murderer and war criminal, that did not matter.

Why did the case go so long and cost so much?

To bring a defamation claim, Roberts-Smith needed only to prove that his reputation had been damaged. This was an easy hurdle to cross. Then the onus was on the newspapers to prove the truth of the imputations that an ordinary reasonable reader might draw from the reports. Proving truth is a defence under defamation law. The 15 imputations pleaded were that the reporting suggested Roberts-Smith authorised the executions of unarmed Afghani civilians, bullied a colleague and committed an act of domestic violence, among others.

To meet the substantial truth test, the media called 26 first-hand witnesses to give evidence and face cross-examination. Roberts-Smith called 15 witnesses to refute them. Many of the witnesses were soldiers or ex-soldiers, but there were also three Afghan villagers who gave evidence via video link from Kabul, amid the Taliban advance in August 2021. All three said they had witnessed the kick at Darwan. At one point the link went down when the Kabul law office’s generator ran out of diesel.

The efforts made to prove the truth of the case have led some people to refer to the case as a de facto war crimes trial, even though it was a civil case, not a criminal case. In fact, the Commonwealth government set up a separate prosecutor, the Office of the Special Investigator, to look at a criminal war crimes case, including against Roberts-Smith. That office’s investigators sat through the defamation hearings to listen to evidence, and to protect the interests of the Commonwealth.

As the defamation case is a civil case, the newspapers’ success meant most of the imputations were proven on “the balance of probabilities”, not to the criminal standard of “beyond reasonable doubt”. It’s hard to strictly define this test, but a 2012 Victorian Court of Appeal decision said the “standard of proof must be responsive to the gravity of the facts in issue and the consequences of the ultimate decision”.

As these allegations are extremely serious, Besanko was convinced to a higher-than-usual level of their truth.

To pursue his claim, Roberts-Smith and his financial backer, media magnate Kerry Stokes, employed two silks, two junior barristers (one of whom became a silk during this long trial), a number of solicitors and a public relations officer. The commercial director of his employer Seven West Media, Bruce McWilliam, was also in the court for much of the time. The news outlets had three barristers, including one silk, and house and external solicitors. Three reporters covered the story for The Age and Herald, and many more from other media organisations.

Why did the newspapers report and defend these allegations?

James Chessell, Nine’s managing director of publishing, said last week that the story was “one of the most significant we’ve ever covered” and that the business was proud of the journalism.

Not defending such an important matter might have sent a signal that the stories were not true, and have deterred future investigative journalism on matters of public interest, particularly anything involving well-resourced people with big reputations.

Why was it in the public interest? Because the laws of war, set up originally by the Geneva Conventions, prohibit degrading treatment, torture or the murder of prisoners and non-combatants. According to Melbourne Law School international law expert Dr Carrie McDougall, these laws distinguish professional soldiers from criminals, and they are central to military honour and to the mission achieving its goals.

Ensuring the Australian Defence Force’s conduct is legal also has a practical effect during wartime: it helps foster local support, McDougall said, without which peace-building and counter-insurgency operations could not succeed.

As the journalists were writing their stories, the inspector-general of the Australian Defence Force was also conducting a long-running secret inquiry into allegations of war crimes in Afghanistan. That inquiry, while naming no individual publicly, found credible information that at least 39 Afghans were unlawfully killed by Australian soldiers, with two others subjected to cruel treatment, in 23 separate incidents, involving 25 members of the Special Operations Task Group.

Before its redacted report was released in November 2020, that inquiry yielded little public discussion. The media stories in the meantime showed the world that Australia was prepared to confront wrongdoing in the open, not sweep it under the rug.

Who else was involved in the case?

Kerry Stokes, the Channel Seven chairman and then-chair of the Australian War Memorial, was Ben Roberts-Smith’s biggest supporter. Seven, a public company, was initially billed almost $170,000 for the legal costs of three witnesses testifying on behalf of Ben Roberts-Smith, including more than $65,000 over two years to pay for lawyers acting for his former patrol commander, a close friend. Seven said those bills were later paid by Stokes’ private companies.

Brendan Nelson, the former defence minister and former chair of the council of the Australian War Memorial, was a character witness for Roberts-Smith, describing him as “the most respected, admired and revered” Australian soldier in more than half a century and the “subject and the object of … reverential mobs”. Nelson had previously questioned the need for the inspector-general’s inquiry, saying, “unless there have been the most egregious breaches of laws of armed conflict, we should leave it all alone”.

Andrew Hastie, a former SAS soldier, Afghanistan veteran was Australia’s assistant defence minister when he gave evidence for the newspapers, referencing the novel Heart of Darkness by saying that, “some guys went up the Congo, and … yes, [that] could have applied to Mr Roberts-Smith”.

Nick McKenzie, the decorated investigative journalist for The Age and The Sydney Morning Herald, was a defendant in the case, as was his co-author and former ABC investigative journalist, Chris Masters. Neither gave evidence.

Australian Federal Police officers attended the court daily as part of their investigations into criminal allegations of war crimes, as did military officials to make sure no military secrets were discussed in open court.

COVID became a character in the case, whose start was delayed for a year due to restrictions on travel and the courthouse. Significant delays were also imposed during the case as Sydney went into and came out of lockdown to the point where one of Roberts-Smith’s barristers, Bruce McClintock, said the pandemic had “bedevilled” the case.