Ben Roberts-Smith: A cautionary tale for would-be defamation applicants and a victory for the truth defence

After the biggest and most expensive defamation trial in Australian history, a judge has found media reports that the country's most decorated soldier Ben Roberts-Smith committed war crimes, assault and acts of bullying in Afghanistan were substantially true.

Justice Anthony Besanko found the most serious imputations conveyed by 2018 newspaper articles – that Mr Roberts-Smith murdered or participated in the murder of Afghan civilians, allegations he has always denied – were proven on the balance of probabilities.  

His Honour found that some imputations were not proven, but the newspapers could rely on the defence of 'contextual truth' because the unproven allegations did not further harm Mr Roberts-Smith's now tarnished reputation.  All three proceedings brought by Mr Roberts-Smith were dismissed.

The decision represents a resounding victory for the news media and for the defence of 'substantial truth' in defamation actions, but also paints a worrying picture of the state of Australia's defamation laws, which routinely require publishers to spend extraordinary sums of money defending legitimate investigative reporting in the courts.

Background and imputations

Mr Roberts-Smith brought three proceedings against the publishers and journalists of the Sydney Morning Herald, The Age and The Canberra Times over the 2018 articles, with the claims heard together in the Federal Court over 110 days from mid-2021 to mid-2022.

The articles alleged Mr Roberts-Smith broke the moral and legal rules of military engagement while deployed in Afghanistan between 2009 and 2012.  There were a total of 16 matters complained of by Mr Roberts-Smith.  The most serious imputations conveyed by the articles included:

• The applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1);
• The applicant while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to “blood the rookie” (Imputation 4);
• The applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel (Imputation 6); and
• The applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol (Imputation 9).

He was also accused of further assaults against Afghan civilians, bullying a fellow soldier; threats and intimidation against other soldiers; and of committing an act of domestic violence against a woman with whom he was having an affair.

Mr Roberts-Smith was not named in the initial articles, with early stories referring to him as "Leonidas" after the Spartan King – a nickname given to him by a soldier who spoke to the journalists.  Mr Roberts-Smith argued he was nevertheless sufficiently identifiable, a position with which all parties ultimately agreed.  By the final group of articles, Mr Roberts-Smith was named and there was no issue with identification.

Justice Besanko found all claimed imputations were conveyed, save for Imputation 9, which his Honour amended to convey Mr Roberts-Smith acquiesced in, rather than authorised, the execution.

Defences

The main defences utilised by the media were justification (or 'substantial truth') and contextual truth.  Given the articles were published in 2018, the new defences available under the 2021 amendments to the Uniform Defamation Acts, such as the public interest defence, were not available.  

The trial was document and evidence heavy, involving 41 witnesses, 6186 pages of transcript, 267 tender items, 125 subpoenas and 63 notices to produce.  Many witnesses were SASR soldiers, who were given pseudonyms.  The Court sat in closed sessions when required for national security reasons and Justice Besanko announced he would publish lengthy open court reasons and a smaller set of closed court reasons.

The decision necessitated findings of fact by Justice Besanko as to whether the evidence supported the newspapers' defences of substantial or contextual truth.  Given this was a civil defamation claim, the relevant standard was the balance of probabilities (to the Briginshaw standard, such that actual persuasion on the part of the fact finder is required given the gravity of the allegations).  

Ultimately, the judge found the evidence largely supported the respondents' defences.  In a 600-page judgment, his Honour made damning findings about Roberts-Smith's credibility, describing him as "not an honest and reliable witness" in many areas.  Justice Besanko found the applicant committed acts which reflected "very poorly" on his credit, including giving false evidence and sending threatening letters to a witness.  He found he was in the "unusual arrangement" of paying legal fees of three witnesses with whom he was very close friends.  Mr Roberts-Smith had multiple motives to lie, the judge said, including to support his claim for damages, to restore his reputation, and to avoid further legal actions brought against him.  

On the other hand, his Honour found the accounts given by the newspapers' soldier witnesses were "powerful".  He found there was no evidence of collusion among the soldiers or a plausible motive to lie.  "These witnesses were independent, had no interest in the result and were aware of the significance of giving evidence," the judgment read.  "Furthermore, they were in a position to observe the events about which they gave evidence."

While Justice Besanko found the respondents had not established the substantial truth of all their allegations, enough serious allegations had been proven to dismiss the proceedings.  His Honour found the contextual imputations were substantially true, and operated to cancel out the remaining unproven allegations because they could not further harm Mr Roberts-Smith's reputation.  His Honour rejected an argument by Mr Roberts-Smith that the contextual truth defence should not apply because the contextual imputations related to a "different sector" of his reputation.  Justice Besanko found that all of the imputations related to violent conduct towards a vulnerable person, and there was sufficient similarity to uphold the defence.

Next steps

The Roberts-Smith case illustrates the fascinating way in which defamation proceedings can become a trial by proxy of different allegations altogether.  Mr Roberts-Smith was not charged with a criminal offence – indeed, he was the applicant – yet the matter culminated with a judge finding him, on the balance of probabilities, to have committed war crimes.  While criminal charges may follow, they will not be brought as a direct result of this civil matter and will involve the higher criminal standard of beyond reasonable doubt.

Prospective defamation applicants will likely view the Roberts-Smith trial as a cautionary tale of the perils of underestimating a media outlet's ability to build its truth defence.  It has highlighted the extraordinary work of the newspapers' legal team in building a dogged and meticulous case, overcoming challenges of memory, geography and language barriers to locate and call witnesses.  It is also a lesson for applicants that all of their past misdeeds – previously public or not – will likely be uncovered throughout the proceeding.  Many commentators hailed the judgment as a victory for investigative journalism, but with the proceedings reportedly incurring over $25 million in legal fees, it is unclear whether that is a reasonable price to pay.  

A case management hearing has been scheduled to deal with costs arguments at the end of June 2023.  Costs in this proceeding were unprecedented for an Australian defamation claim.  While costs generally follow the event in defamation actions, courts will also look carefully at the timeline of any pre-trial offers to settle and whether an offer ought to have been accepted.  The respondents indicated in court they may seek third-party costs orders, presumably to recover funds from the applicant's financial backers.  Meanwhile, Mr Roberts-Smith's counsel indicated they may appeal the ruling.  

Authors

Marlia Saunders | Partner | +61 2 8248 5836 | msaunders@tglaw.com.au

Sophie Meixner | Lawyer