Roberts-Smith case
Ben Roberts-Smith v Nine puts us all in the box
It has been described as the biggest defamation action in Australia's history. But the consequences are far more wide reaching and profound than defamation.
A painting of former SAS soldier Ben Roberts-Smith by artist Michael Zavros, seen at the Australian War Memorial in Canberra. Alex Ellinghausen
Max MasonSenior reporter
Jun 7, 2021 – 5.00am
At 7.35pm on August 10, 2018, Sydney Morning Herald investigative reporter Kate McClymont is running late. She's meant to be going to the Kennedy Awards for journalism when she learns her newspaper is being taken to court over a story about how war hero Ben Roberts-Smith allegedly committed war crimes.
For years Roberts-Smith had been lauded as the model Australian soldier, given the country's highest military honour and even named father of the year.
But that day, investigative reporters Nick McKenzie, Chris Masters and David Wroe had published a story naming Roberts-Smith, accusing him of committing murder on deployments to Afghanistan.
McClymont volunteers to rush down to the Federal Court to cover the injunction hearing.
While Roberts-Smith lost that legal battle on August 10, he is back in court today, suing the same newspapers for defamation, in what's being described as the biggest such trial in Australia's history.
But the consequences are far more wide reaching and profound than defamation. The court case doesn't exist in a vacuum and it will publicly examine uncomfortable questions about Australia.
Months of reporting
The August 10 story was the culmination of months of reporting about allegations that unnamed Australian armed forces members in Afghanistan had been involved in murder and pressured junior soldiers to kill.
Previous articles had referred to allegations against "Leonidas", the famed king of ancient Sparta, which was reportedly a nickname for one of the unnamed soldiers.
The August 10 story was the first to name Roberts-Smith. It was published on the websites of The Sydney Morning Herald and The Age at 6am but Roberts-Smith's lawyers wanted it taken down and not published in the next day's newspapers.
At 7.35pm on August 10, McClymont phoned Herald investigations editor Michael Evans back at the office to say the court application had been dismissed.
Investigative reporter Nick McKenzie. Nine
She filed a story on the failed injunction that was published at 8.13pm. Still plenty of time to get to the Kennedys which didn't finish up until 11.30pm that year. The story was published in the Saturday papers.
Later that night at Randwick Racecourse, McKenzie and Masters, up from Melbourne, were called up on stage.
The pair had taken out the Kennedy award for outstanding investigative reporting for their explosive investigation into allegations of war crimes involving unnamed Australian soldiers serving in Afghanistan, referring to "Leonidas" from June 8-10, 2018.
The story naming Roberts-Smith referred to "disturbing allegations about his behaviour in Afghanistan", without repeating the allegations against Leonidas.
The Age and the Herald are owned by Nine, which also owns The Australian Financial Review.
On the Saturday morning, McClymont was surprised to wake up and read News Corp's The Australian.
Despite the arguments she'd heard in court, Roberts-Smith had done an extensive interview, with photos, with The Weekend Australian in which he'd spoken about some of the allegations and accused a small band of SAS soldiers of a "smear campaign" facilitated by the "hatchet job" in Fairfax papers.
Five days later, on August 15, Roberts-Smith filed a defamation action against Fairfax and the three journalists, including for the stories that did not name him and won the Kennedy award.
Roberts-Smith says the Fairfax stories alleged he committed murder on deployments to Afghanistan between 2009 and 2012, and that he punched his mistress in the face in Canberra.
Roberts-Smith denies the allegations and says the reports are defamatory, portraying him as a criminal.
Nine is relying on a truth defence, arguing that the allegations made in the original articles are substantially true.
A proxy war-crimes trial
Essentially, it is a proxy war- crimes trial. If Nine is successful, the court is ruling the allegations it made, many of which are of war crimes, are largely true, albeit to the lower civil standard of proof.
The trial is slated to start on Monday and run for up to 10 weeks.
"I think there has been a misconception that we're responsible for this court case," McKenzie says.
"This is a court case that Ben Roberts-Smith brought on. This is a court case Ben Roberts-Smith forced into existence and every witness is being called because Ben Roberts-Smith says 'these things didn't happen and these people are liars'."
Over the nearly three years since the defamation action was launched, the story has taken on a life of its own, and McKenzie and Masters have forged ahead with their reporting.
"The plaintiff [Roberts-Smith] brings these proceedings. He wants to get into the witness box first and give his side of the story," Roberts-Smith's barrister Bruce McClintock, SC, told the court in April. "My client wants to get into the witness box and say what happened in Afghanistan and face cross-examination. It's something he actually looks forward to."
In April 2021, the pair, with producer Joel Tozer, revealed another explosive joint investigation across the Herald, The Age and 60 Minutes, with new allegations against Roberts-Smith, accusing him of burying evidence and being responsible for threats against witnesses of a war-crimes investigation.
Additional reporting by McKenzie and Masters after August 11, 2018, has not been added to the defamation claim, although Roberts-Smith has denied the claims.
Investigative reporter Chris Masters.
For four years, the Inspector-General of the Australian Defence Force probed the behaviour of soldiers on deployment in Afghanistan, including allegations of murder.
The Brereton inquiry, presided over by NSW judge and Army Reserve Major-General Paul Brereton, and made public in November 2020, found evidence that 25 Australian soldiers were complicit in the murder of 39 Afghans and "cruel" mistreatment of two prisoners. The report was redacted and did not name any of the people who were the subject of its findings.
The Age reported the Australian Federal Police have undertaken two war-crimes investigations against Roberts-Smith, and he has been referred to the Commonwealth Director of Public Prosecutions whose task it is to decide whether he will face charges of war crimes. No charges have been laid. However, it was reported in May 2020 by The Age that the CDPP has retained Sydney barrister David McLure, SC.
It has also been reported the federal police are investigating Roberts-Smith over the allegations of buried information and witness intimidation, raised in the April 2021 investigation by McKenzie, Masters and Tozer.
In January, the Office of the Special Investigator officially began its work on examining the findings of the Brereton inquiry into war-crimes allegations.
The AFP and the Special Investigator will be monitoring Robert-Smith's defamation case for use in its own investigations of war crimes.
It's a story that has all brought in former and current serving military personnel and Afghan civilians (most of whom can't be identified), a media mogul, even a former governor-general, Quentin Bryce, who was surprisingly announced as a reputational witness by McClintock in April.
However, Dame Quentin has declined to appear, according to The Australian, even despite an appearance from Roberts-Smith with flowers at her home in the last fortnight.
"Let's not forget some of the most important witnesses in this case serve their country, many of them served with distinction, had served in Afghanistan and are prepared to come to court and tell the truth about what they saw and heard on the battlefield in Afghanistan," McKenzie says.
Seven West Media and Australian War Memorial chairman Kerry Stokes. Alex Ellinghausen
"I think that's really important. This is a reckoning, not just for Ben Roberts-Smith and not just for us, but it's a reckoning for the country. Because the truth will come out at the end of the day and the truth should be welcomed no matter how unpleasant or how tough it is to see or to hear. It, nevertheless, should be welcomed by everybody."
Roberts-Smith, who will be the first witness called in the court case, has vigorously denied the original and successive reports. In a joint statement on Sunday afternoon, the former soldier's parents called the allegations false and gravely distressing for the whole family.
"The allegations have not only destroyed Ben's life, but have affected us every day for the last several years," they said. "We never expected that our son would be unfairly attacked in this manner after he served his country in Afghanistan with distinction and risked his life. We are very proud of him for the father and son that he is. We love and care for him like every parent loves and cares for their child."
Now an executive at Seven West Media overseeing its Queensland operations, Roberts-Smith has had the backing of the media company's proprietor and Australian War Memorial chairman Kerry Stokes.
Seven, chaired by Stokes, has through the legal action steadfastly stood by Roberts-Smith, who joined Seven in 2014. He stood down in April ahead of the defamation trial.
Seven, following the April 2021 investigation, alleged it was an "attempt to intimidate him into not proceeding with his case against the newspapers and reporter Nick McKenzie".
Last November, the Financial Review's Rear Window column reported that the Stokes' private investment vehicle, Australian Capital Equity (ACE), extended a line of credit to Roberts-Smith to help fund his legal action against Nine's newspapers. At the time, it was drawn down $1.9 million.
Roberts-Smith's Victoria Cross medal and other awards have been put up as collateral against the loan.
In April, the Herald and Age revealed the loan was originally given to Roberts-Smith by Seven. Then, however, in June 2020, Stokes' private company paid back the loan to the listed Australian media company and agreed to further fund Roberts-Smith's legal matters via Australian Capital Equity.
While the trial, to be heard by Justice Anthony Besanko, will largely remain open, it is unlikely to be streamed. The Commonwealth is petitioning to keep it offline due to fears national security matters might accidently be aired.
Faith in the system
In an interview with The Australian in June 2020 after new war crimes allegations were made in the defamation case, Roberts Smith said: "As always, I categorically deny all of Nine's allegations and I will continue to fight to clear my name and reputation and the reputation of my fellow soldiers."
McKenzie says he has full faith in the justice system to weigh up the evidence presented by both sides and "come to the right conclusion".
"There's a lot of noise out there at the moment. He has some of the best paid PR people and lawyers in the country spinning like mad," he says. "He would no doubt point the finger at us and say that we're also creating some of that white noise.
"But, at the end of the day, the court will take no notice of that and simply look at the evidence, simply look at the witnesses, and I've got full faith that when the court does that the full truth will come out."
McClymont will also be watching the result. "There's so much to lose on both sides of this case," she says. "Behind it all are two powerful media organisations in Nine and Seven. Complexities abound wherever you look at this case. Sometimes in these [defamation] cases even if you win, you lose.
"It some ways it has taken a personal toll and at the heart of this are the reputations of people at the top of their profession. In this battle of the titans, will the pen prove to be mightier than the sword?"
Ben Roberts-Smith
Kerry Stokes
Ryan Stokes
Quentin Bryce
Seven West Media
Chris Masters
Max MasonSenior reporterMax Mason is a senior reporter at The Australian Financial Review. He is a former media editor and telecommunications reporter at the masthead and has previously worked at The Sydney Morning Herald, The Age, Fox Sports Australia and News Corp. Connect with Max on Twitter. Email Max at max.mason@afr.com
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