War hero Ben Roberts-Smith has been wounded, whatever the result

After 99 days of hearings and $30m tipped into the pockets of lawyers, the de facto war crimes trial of Ben Roberts-Smith has come to a close.

Ben Roberts-Smith arrives at the Federal Court in Sydney at the end of his marathon 99-day defamation case. Picture NCA Newswire / Gaye Gerard.

After 99 days of hearings and $30m tipped into the pockets of lawyers, the de facto war crimes trial of Ben Roberts-Smith has come to a close.

It was a battle of his own choosing but the war hero has come out of it badly wounded, with a verdict still months away.

Defamation cases are unruly beasts that have a habit of heading off in directions no one predicted. Ask Christian Porter and Craig McLachlan.

This one charged out of the gate head-first into a series of killings in Afghanistan, trampling over the testimony of a dozen SAS witnesses, then swerved back home to carve a path of destruction through the Victoria Cross ­recipients’ marriage and his extra­marital affair, before pulling up in his own backyard to dig up a pink children’s lunch box and its hoard of secrets.

And that was all before the 43-year-old former SAS soldier called his own witnesses.

The trial has at least gone the distance, unlike the Porter case, which the former attorney-general gave up before it ever properly got going, and the McLachlan case, which the actor abandoned just as the defence was about to bring on its 11 witnesses.

Both decided to cut their losses and walk away with hefty legal bills, but neither had the deep pockets and even deeper loyalty of Roberts-Smith’s employer and patron, billionaire media mogul Kerry Stokes.

Roberts-Smith may be wondering if that was a blessing or a curse. Whatever judge Anthony Besanko finds when he hands down his judgment later this year, a parade of SAS soldiers has given eyewitness accounts of the VC ­recipients’ alleged involvement in murder.

Roberts-Smith has denied all the claims, and plenty of other soldiers have given evidence backing him. But the headlines have been merciless. Vindication, if it arrives, will have come at a heavy price.

The understated Besanko runs his court with quiet authority, rarely interjecting but ready to pull up even the most ­senior members of the bar.

When Roberts-Smith’s barrister Arthur Moses SC raised his voice and interrupted the answer of one SAS witness he was cross-examining, Besanko admonished him: “Just pause, Mr Moses, I won’t tolerate raising the voice to the ­extent you did in this court.”

“Yes, Your Honour, I won’t do that,” Moses replied.

Besanko is, in short, the judge you’d want if you were that innocent person caught Hollywood-style bending over the body of the victim with a bloodied knife in your hand. The kind of judge who can be relied upon to see through a thicket of lies.

And many witnesses in this case have lied. The conflicting accounts of what happened in the two central SAS missions at issue in the trial are irreconcilable.

You don’t forget or mistake seeing one of your comrades fire a machinegun into the back of a ­detained, unarmed man. You ­either saw it or you made it up.

You don’t crawl into a Taliban tunnel armed only with a pistol and forget or mistake finding two Afghan males hiding in it – men allegedly executed minutes later. You’ve either lied about it or there were no men in the tunnel.

Yet each of the SAS soldiers who told these stories – one on ­behalf of the newspapers, the other for Ben Roberts-Smith – were compelling witnesses, plainly spoken men who seemed to give earnest, detailed accounts. The judge will need to work through dozens of such conundrums.

The last weeks of the trial have been overshadowed by allegations of collusion between a small inner circle of Roberts-Smith’s witnesses, a potentially fatal blow for his case.

Equally, Roberts-Smiths’ lawyers have spent dozens of hours probing the newspapers’ witnesses for acknowledgment they were motivated by jealousy for Roberts-Smith’s VC award, or simply by outright dislike of the soldier, a hard task-master who by his own admission once punched a subordinate in the face for wildly shooting in the direction of a woman and child. (To be fair, he is also alleged to have threatened to smash in the face of a superior officer, although Roberts-Smith has denied making the threat.)

In theory, Roberts-Smith doesn’t have to prove anything. The onus is on Nine to prove the substantial truth of what its journalists wrote. But it only needs to do so on the balance of probabilities, not to the criminal case standard of beyond reasonable doubt.

And it only needs to prove one case of murder. After that, Roberts-Smith’s reputation would be worthless.

As for the other central allegation, that the war hero assaulted his former mistress, the evidence is far from conclusive.

In the witness box last year it was the claim he’d punched a woman that brought the accused war hero to tears.

“I walk down the street and people will look at me,” he said, voice quavering.

“The first thing I think of is that they think I hit a woman.”

The woman gave faltering, tearful evidence in the trial, some of it bizarre. She claims Roberts-Smith punched her after the pair attended a Parliament House function. But the only significant witness is a man who helped her after she had fallen down drunk on some stairs and injured her head in almost exactly the spot where she claims Roberts-Smith later hit her.

The woman’s credibility was not enhanced by a strange story she told about being approached on a beach by a stranger and shown photos of herself and the war hero having sex up against a window in a hotel room.

She said the mysterious figure demanded she tell Roberts-Smith’s wife Emma about the affair, or the photos would be made public. Yet she failed to mention the encounter to Roberts-Smith when she texted him later that morning and would later tell police the pictures were of the couple naked in a bed.

Under cross-examination she repeatedly denied she had invented the whole episode.

But it would be a Pyrrhic victory for Roberts-Smith if Nine’s claims about domestic violence are thrown out but one or more of the allegations of murder are found true.

Sources close to Kerry Stokes say he remains convinced of ­Roberts-Smith’s innocence and is determined to fight the case to the end.

Equally, Nine cannot just walk away from two of its star journalists, Nick McKenzie and Chris Masters.

An appeal is almost inevitable, and is guaranteed to prolong the pain for all.

Put your money on the judge getting it right first time around.