Hiding the truth ensures the powerful remain unaccountable

“No one is above the law” is a mantra oft cited, but nonetheless a fundamental pillar of a society’s commitment to the rule of law. And it is apt to remind ourselves of its importance in the context of the allegations against decorated soldier Ben Roberts-Smith.

Mr Roberts-Smith has been accused of seeking to intimidate those who would give evidence unfavourable to him and burying materials that ought to have been handed over to the inquiry led by NSW judge Paul Brereton into allegations of war crimes committed by Australian soldiers in Afghanistan.

Former soldier Ben Roberts-Smith who has been accused of intimidating witnesses to stop them from giving evidence against him to an inquiry into alleged war crimes.Credit: Getty

Mr Roberts-Smith denies allegations of wrongdoing, and today has repeated that denial emphatically.

The detail of the new allegations against Mr Roberts-Smith published by Channel Nine and The Age and The Sydney Morning Herald yesterday is that he “buried a cache of compromising photos, as well as videos and classified documents in his Queensland backyard, apparently to hide them from police and military investigators” and that among “the images were those suggesting war crimes had been committed in Afghanistan, and others representing a breakdown of discipline and order”.

It is also alleged Mr Roberts-Smith “sent emails and letters intimidating people he believed would give evidence against him”. These threats are said to include anonymous emails warning of harm to a witness at the Brereton Inquiry if he did not recant his evidence and others sent to police alleging another individual was going to commit a massacre along the lines of the Las Vegas massacre, carried out by a lone gunman in October 2017, in which 60 people were killed.

Given the denials by Mr Roberts-Smith it’s a matter for the appropriate investigating authorities to determine where the truth lies in relation to these serious allegations, but it is right to observe that there is no greater threat to the rule of law than actions which seek to prevent the truth from being discovered by an impartial judicial process, whether it be military or civilian. Such actions ensure the powerful remain unaccountable and we as a society are left in the dark about the truth of what happened.

One of a cache of controversial images raising questions about SAS behaviour. Ben Roberts-Smith, highlighted, back left, smiles and pumps his fist as a soldier in a Ku Klux Klan outfit burns a cross.

The Australian justice system, and indeed any nation’s system of law, depends on integrity of processes and the protection of individuals who are witnesses to events. That in essence is the reminder we should give ourselves, given what is alleged to have occurred in the Roberts-Smith case. And simply because the person who is being investigated is a celebrated member of our community does not mean we should take any less seriously the threats to the justice process.

One might also add here to the extent anyone thinks that somehow military personnel and the theatre of war are special cases, they are wrong. While there is a separate military justice system nothing in it sanctions, or tolerates, truth being covered up. That Australian soldiers have a positive image in the mythology of this country does not give them a ‘get out’ clause on the concept of the law being applied equally to all.

To expand on idea that the status of an individual is relevant to how allegations of wrongdoing are treated, we need simply note – and this is a point that has been topical recently in the context of allegations against politicians and staffers – that it is self-evident the law applies to all of us and with it a responsibility on each citizen to ensure they comply with the ethic of fairness. That is, it does not matter what reputation and what legacy or heroic image is at stake, if the truth emerging through a fair legal process will tarnish or even destroy that reputation, legacy or image, then so be it.

That the allegations of witness intimidation against Mr Roberts-Smith need to be thoroughly investigated is self-evident. Not only because those alleging such conduct deserve it, but of course so does Mr Roberts-Smith. But more broadly it is critical because there needs to be a reinforcing of confidence in our justice system and the commitment to the rule of law. It is cases like this one where the legal system is itself on trial because unless it is seen to be ensuring thorough investigation and procedural fairness to all parties there is an erosion of trust by the community in the Australian justice system.

The intimidation of witnesses is not a new problem, of course. In 2006, English judge Lord Rodger of Earlsferry observed: “The intimidation of witnesses is an age-old and worldwide problem. When Cicero was intent on prosecuting Verres for his reign of terror in Sicily, highly-placed henchmen of Verres threatened ‘the fearful and oppressed Sicilian witnesses’ with dire consequences if they gave evidence against him. Two thousand years later, still in Sicily, prosecutions of Mafia bosses have been bedevilled by the prevailing atmosphere of intimidation, with its insidious counterpart, the code of silence, omertà.” But the antiquity of the problem does not lessen its devastating impact on the quest for truth.

Greg Barns SC is a barrister.

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