‘Reviled as a murderer’: Roberts-Smith closes case against Nine with fiery speech

The final moments in Ben Roberts-Smith’s defamation trial have featured an extraordinary speech by the SAS soldier’s lawyer.

Ben Roberts-Smith’s defamation trial is at the beginning of the end with his lawyers accusing Nine newspapers of a “sustained campaign” to falsely smear the Victoria Cross recipient as a war criminal, bully and domestic abuser with unfounded articles and a contorted court case.

The newspapers have claimed, in their final address, that Mr Roberts-Smith and his mates “calculated” and lied to hide the truth about brutal killings by the SAS.

Two full weeks of closing submissions are now underway in what has variously been called the trial of the century, a proxy war crime trial and an attack on the free press.

But Mr Roberts-Smith’s lawyers, on Monday, said their lawsuit is nothing but an attempt to clear the name of one of Australia’s most venerated soldiers.

Behind the endless discussions about damages and defamation law is “a case about a human being”, one of Mr Roberts-Smith‘s barristers told the court on Monday.

“A human being who has suffered, who was once known as a hero but now, thanks to (Nine) is a man widely reviled as a murderer and an abuser of women,” Matthew Richardson SC said.

The barrister quoted Mr Roberts-Smith, in his evidence a year ago, who said “it was traumatising” to be at the centre of war crime accusations.

“I served with honour and distinction and I always followed the laws of armed conflict,” Mr Roberts-Smith told the court.

“These people, using smears from people who don‘t like me, have written articles that suggest I’m a war criminal.”

Mr Roberts-Smith said he was sent to Afghanistan at the behest of the Australian government and he always did the correct thing - even when those things were horrific.

“What is the legacy of my family now because of those articles?” he asked rhetorically.

“It‘s something that crushes me, crushes my soul, because I gave so much to that job and it’s all lies.”

Decorated soldier Ben Robert-Smith arrives at Supreme Court for his defamation trial against Nine. Picture: NCA NewsWire / Jeremy Piper

His parents were also in court. Picture: NCA NewsWire / Jeremy Piper

Mr Roberts-Smith launched legal action against the publishers and journalists behind a series of articles in the Sydney Morning Herald and The Age newspapers in mid-2018.

The articles claimed Mr Roberts-Smith killed or was complicit in the murder of six unarmed prisoners on the battlefields of Afghanistan during his deployment with the SAS.

The articles further alleged Mr Roberts-Smith bullied other soldiers and physically abused a woman he was dating while back in Australia.

Mr Roberts-Smith emphatically denies every allegation made by Nine while the newspapers mounted a truth defence when the elite soldier sued them for defamation.

After more than 100 days of evidence, legal teams for Mr Roberts-Smith and Nine have begun summarising their cases to Federal Court Judge Anthony Besanko.

Mr Roberts-Smith’s main barrister, Arthur Moses SC, began his closing address with a blistering denouncement of Nine’s conduct, claiming the newspapers had refused to back down from errors in their stories, even in the face of contradictory evidence, and instead used the court to launch more unfounded allegations.

“This is not about a path home to victory, as (Nine) have at one time put their case,” Mr Moses said.

“Rather this is about (Nine) using the processes of this court to make allegations of murder which will have national and international repercussions the applicant and other members of the Australian Defence Force who they have accused of murder.”

Barrister Arthur Moses SC Picture: NCA NewsWire/Joel Carrett

Nine’s barrister, Nicholas Owens SC, painted the case very differently.

He said it was no coincidence that his reluctant and disconnected witnesses all gave sworn evidence that pointed to Mr Roberts-Smith’s guilt, particularly on a crucial mission from 2009 known as Whiskey 108.

Nine claims the SAS found two Afghans hiding in a tunnel and detained them before Mr Roberts-Smith executed one and forced a junior soldier to execute the second.

The SAS soldiers, on the ground at Whiskey 108, have given totally contradictory evidence about the raid.

Some claimed they witnessed the killings while others claimed the tunnel was empty so there could be no executions.

Mr Owens claimed Mr Roberts-Smith’s witnesses are all close mates who spent years cooking up a story “calculated to deny the presence” of Nine’s key witnesses.

“Each witness has a motive to lie,” Mr Owens said.

“(They) are a very close unit of people, communicating regularly and with an obvious affection for each other.”

One of those witnesses, Mr Owens said, has the additional motive to lie because he stands accused of jointly ordering one of the two executions at Whiskey 108.

Mr Roberts-Smith, deployed with the SAS, in 2010. One year after Whiskey 108 and shortly before he saved his team mates, earning the VC in the process at the Battle of Tizak.

The court has heard from numerous soldiers who have been implicated by Nine’s reporting of war crime allegations – many fiercely denied they carried out executions, others refused to testify on the grounds of self-incrimination.

But Mr Moses said that, even when the evidence came up short, Nine refused to withdraw grave allegations against Mr Roberts-Smith.

He pointed to an allegation Mr Roberts-Smith shot dead a teenage boy during one mission outside the legal rules of war.

“As the evidence revealed, there was no 13 to 14-year-old boy involved in any incident, nor was there any killing without justification. This allegation was baseless and should not have been persisted with,” Mr Moses said.

“Presumably it was persisted with to damage Mr Roberts-Smith in aid of the other allegations propounded in this matter.”

Mr Moses told the court Nine’s “sensationalist” stories stemmed from bitter and jealous SAS insiders who were trying to tear down Mr Roberts-Smith.

Federal MP Andrew Hastie is one of the SAS witnesses who, according to Mr Moses, was “obsessed” with Mr Roberts-Smith but had failed to provide evidence to back up Nine’s claims of murder.

Mr Roberts-Smith being awarded the VC in 2011. Picture: Department of Defence

Mr Hastie, an SAS veteran who deployed briefly alongside Mr Roberts-Smith in 2012, gave evidence for Nine about one mission in the region of Syahchow.

Nine claimed Mr Roberts-Smith ordered a junior soldier, known as Person 66, to execute an Afghan captive during the mission.

Mr Hastie was at Syahchow that day and told the court he saw a dead body with an AK-47 assault rifle and saw Person 66 looking uncharacteristically uneasy.

The MP claims Mr Roberts-Smith walked past and said “just a couple more dead c***s”.

Mr Hastie also told the court he had “dreams” about Mr Roberts-Smith in which they had killed an Australian troop and “covered it up”.

The MP said he believed the dream was a metaphor for a “deep truth” about “what we had done to ourselves” in Afghanistan.

Person 66 refused to testify about Syahchow on the grounds of self incrimination.

Nine said his evidence would have been a potential “path to victory”, but Justice Besanko refused to order Person 66 to testify about Syahchow.

Mr Moses, on Monday, said there was simply no evidence to support Nine’s claim of murder at Syahchow but the allegation remains in their court documents.

Mr Roberts-Smith’s legal team have never publicly revealed how much money they want in terms of damages for Nine’s articles.

But, if Mr Roberts-Smith’s lawsuit succeeds, the payout could dwarf any other in defamation history because of the seriousness of multiple war crime murder allegations, his prior good name, previous business successes and the “avalanche” of publicity that has continued through the court case.