Battle of two narratives in Ben Roberts-Smith defamation case

Ben Roberts-Smith, left, and Arthur Moses SC leaving the Federal Court in Sydney on Wednesday. Picture: NCA NewsWire/James Gourley

Regardless of the outcome, the Ben Roberts-Smith defamation case has already secured its place in legal history. It must be one of the most bizarre and brutal arguments ever to come before the Federal Court. For the loser, it will prove ruinous.

A former soldier’s conduct on the battlefield is being judged by the refined standards of a defamation court – a forum that usually deals with arguments about the hurt feelings of politicians and movie stars.

In substance, this is a war crimes trial, topped up with a side argument between a man and his former wife who is helping newspapers that have accused him of murder.

This makes it the most serious defamation case since Dragan Vasiljkovic took objection when The Australian exposed his criminal conduct during the war in Croatia.

The only thing these cases have in common is the cost. Although “Captain” Dragan lost in the NSW Supreme Court, the price of this newspaper’s victory was immense – legal costs of $1.5 million that will never be recovered.

Back in 2017, when Vasiljkovic was finally jailed, the immense cost raised doubts about the viability of this sort of proceeding.

But then along came the Roberts-Smith case. What was he to do?

The former SAS corporal and Victoria Cross recipient sued after Nine Entertainment’s newspapers had accused him of murder during the war in Afghanistan.

The task confronting his legal team this week was to start transforming the narrative and chipping away at the credibility of Nine’s journalists and witnesses.

Because Nine is running a truth defence, it will either win big or lose big. Unlike last week’s settlement between Christian Porter and the ABC, it’s hard to see any room for a settlement.

That means prominent figures in the media will lose. Who will it be?

Kerry Stokes of Seven West Media is backing Roberts-Smith, while on the other side is Seven’s rival, Nine Entertainment, and a team of prominent reporters led by the award-winning Nick McKenzie.

McKenzie is no stranger to the world of defamation. He fronted a joint project by Nine and the ABC – aired on Four Corners – that did not end well. It resulted in a devastating loss in February against businessman Chau Chak Wing that cost Nine $590,000 in damages.

For McKenzie, the Roberts-Smith litigation must be like old times. Chau Chak Wing had solicitor Mark O’Brien in his corner and silk Bruce McClintock SC – the same team that is running things for Roberts-Smith.

And McKenzie is again before Justice Anthony Besanko who was part of the appeal bench in the Chau Chak Wing case that unanimously upheld a decision that stripped the ABC and Nine of their truth defence because, among other things, it contained circular reasoning.

Also on that appeal bench was Justice Robert Bromwich, who happens to be presiding over the fireworks in the separate case Roberts-Smith is running against his former wife Emma Roberts.

The case before Bromwich was only supposed to be a sideshow, aimed at determining whether Roberts had used access to the former soldier’s email account to feed documents to Nine.

But things blew up during the week when Bromwich asked for a response to a gossip column in a Nine newspaper about what was said to be a relationship between Roberts-Smith and one of his solicitors, Monica Allen.

While McClintock was busy in another courtroom with a closed session of the main case, Roberts-Smith had former Law Council president Arthur Moses SC representing him before Bromwich.

When the judge raised the gossip column, Moses said there was no relationship – which is just as well because there is no mention of one in an affidavit by Allen that forms the basis for orders requiring Roberts to reveal what she obtained and where it went.

McClintock SC spent the entire first day of the trial sending a clear message to McKenzie and Nine that they are the ones who are now being pursued.

His focus was on making the point that there is another side to the stories that started running in August, 2018, in The Sydney Morning Herald and The Age – which are now owned by Nine Entertainment – and The Canberra Times which is now owned by Australian Community Media.

McClintock says some of Nine’s witnesses are disgruntled former soldiers and the inhumane nature of the Afghanistan war meant “a lot of these men are in very bad shape”.

What exactly he was getting at will probably become clear as this case unfolds. But he would have been aware that psychiatric evidence might be used by the other side.

Nine has won permission to examine the files of Roberts-Smith’s psychiatrist as well as the files of the psychologist who gave him marriage counselling.

So there is a risk this case could become a little unseemly – and that’s before we even get into the issue of who took the dead Afghan’s prosthetic leg?

The dead man, according to McClintock, was actually an insurgent, who Roberts-Smith shot during an attack while the prosthetic was souvenired by another soldier.

McClintock also had a different take on the accusation that Roberts-Smith had punched his former girlfriend in the face. The silk says the woman was drunk, fell down stairs and there will be supporting evidence.

He also attacked the credibility of veteran journalist Chris Masters over the allegation that Roberts-Smith killed a 13-year-old boy. McClintock has told the court that Masters knew this to be false.

McKenzie, Masters and other Nine witnesses have their own stories to tell. But an alternative narrative, about bad journalism and battlefield gripes, is taking shape.

Chris Merritt is vice-president of the Rule of Law Institute of Australia