The outcome of the most protracted, expensive and portentous defamation trial in Australian history was always going to have major implications for the media, the defence force and the reputations of high-profile individuals on both sides of the contest, whichever way Justice Anthony Besanko’s judgement landed in the Federal Court in Sydney.
But Besanko’s incendiary finding early yesterday afternoon that Ben Roberts-Smith, the most highly decorated and revered Australian soldier since the Vietnam war, was “a murderer, a war criminal and a bully” — as the headline in the Age instantly trumpeted its victory — is a watershed moment for the future of investigative journalism and, more profoundly, for the future of our military forces, upon whose reputation much of our national self-esteem has been cultivated for more than a century.
Besanko ruled that Roberts-Smith murdered or was complicit in the murder of multiple unarmed civilians while serving in Afghanistan. He found, on the balance of probabilities, that Roberts-Smith kicked a handcuffed prisoner off a cliff in 2012 before ordering another soldier to shoot him dead. He further found that in 2009, the SAS corporal ordered the killing of an elderly man found hiding in a tunnel in a bombed-out compound and, during the same operation, murdered with a machine gun a disabled man with a prosthetic.
The decision was not a criminal conviction but a civil judicial determination of truth on the “balance of probabilities.” But the reputation of Victoria Cross and Medal for Gallantry winner Roberts-Smith lies in tatters, along with that of the Special Air Service Regiment, with which he served, and the troubled Australian deployment in Afghanistan for which he was once a poster boy. And an air of grim foreboding hangs over the coming Afghanistan war crimes prosecutions in which Roberts-Smith is front and centre among many soldiers accused of grave abuses.
Roberts-Smith’s decision to sue for defamation must go down as one of the biggest own goals in history. As Age reporter Nick McKenzie pointed out after the verdict, the journalists had not wanted to go to court and neither had the SAS soldiers forced to give evidence against their former comrade. Roberts-Smith gambled that by taking defamation action he would intimidate and silence his media accusers. Instead, he simply amplified massively the damaging publicity in a case that dragged out over five years, thanks to Covid, and ended by vindicating his accusers.
Had Roberts-Smith simply professed his innocence and rejected the allegations in the Age reports, however damning they were, the media coverage would likely have subsided until the findings of the Brereton inquiry evolved into war crimes prosecutions, a process that clearly still has a way to run. At that point, if charged, he would have been judged alongside others accused of equally heinous crimes, with perhaps a better opportunity to introduce mitigating evidence and supportive witnesses — instead of flying solo into the sun in the civil courts.
Nine Entertainment, dating back to when it was known as Fairfax Media, has been rightly applauded for backing its journalists in this case. Had it lost, it would likely have been up for the bulk of the costs of the two legal teams — estimated at as much as $25 million — aside from any award of damages. (Another $10 million is estimated to have been spent by the Commonwealth on its representation in the case.) Even with an expected costs order in its favour, Nine is likely to finish out of pocket to the tune of several million dollars. But given the gravity of the matters at the heart of the stories, the company really had no choice but to stand and fight, for the sake of its own reputation as much as that of its star journalists.
The modern history of media defamation cases in Australia, including at Fairfax, has been mostly about negotiating early settlements and quick payouts to avoid the potentially crippling costs of going to trial and losing — a fact that often has only emboldened litigants whose misconduct was a proper target of journalistic investigation but who have plenty of money to stare down the media and muddy the waters with writs.
Had Nine lost to Roberts-Smith, the fallout would likely have been very serious for the future of investigative journalism in Australia. The huge financial toll would have made all publishers and broadcasters even more wary about tackling big stories challenging high-profile, well-resourced entities, more likely to fold than fight when their journalism was challenged legally, and probably less enthusiastic about investing the big bucks needed to employ and deploy good investigative journalists.
The decision in the defamation case has no formal bearing on the war crimes proceedings, which is why defence minister Richard Marles was able to escape yesterday with a brusque “no comment” on the civil matter when his office will undoubtedly be consumed with analysis of the fallout from the case. But the intense publicity surrounding the trial and its shocking conclusion will sharpen expectations of a timely and thorough interrogation of the conduct of Australian forces in Afghanistan, which is now a full-blown national scandal and an international embarrassment.
On the steps of the court after the verdict, Nick McKenzie — whose formidable career and reputation also hung in the balance with the trial’s outcome — rightly pointed out that the decision involved one soldier not his entire regiment, many of whose members had bravely spoken out about his conduct. “I’d like Ben Roberts-Smith to reflect on the pain that he’s brought on lots of men in the SAS who stood up and told the truth about his conduct,” McKenzie said. “They were mocked and ridiculed in court. They were bullied. They were intimidated.”
But with many other SAS soldiers under active investigation for murder and other very serious war crimes, and with the brutal and ugly culture of the unit drawn in graphic detail during the defamation hearings, the future of the SAS Regiment is in serious question if not untenable. It is painfully evident that much of the behaviour that led to the alleged atrocities thrived under an elitist and secretive code. Some SAS members were clearly emboldened to believe they could act with impunity and in defiance of international law.
The indications that multiple offences occurred over many years in Afghanistan calls into serious question not only the failure of the SAS commanders to maintain discipline but also the lack of supervision by the entire command structure of the Australian Defence Force.
Just as the misconduct of a minority has tarnished the reputation of the entire SAS and all those who fought with courage and dedication in Afghanistan, so too has that misconduct cast a shadow over the reputation of the entire ADF, its proud legacy in two world wars and multiple other conflicts, and its claim to be the repository of the hallowed Anzac spirit and a standard-bearer of the Australian character.
The problem has been compounded by sections of our defence establishment who have resolutely defended Ben Roberts-Smith and denounced the work of those journalists who dared to challenge his record, not least within the previous leadership of the Australian War Memorial. Most egregious among them was former AWM director and later chairman Brendan Nelson who, after the first reports appeared in the Age, accused the journalists of running a scurrilous and unfounded campaign against the SAS and Roberts-Smith in particular.
“Australians need to understand that we have amongst us a small number of real heroes and Ben Roberts-Smith is one of them,” Nelson declared. “I say to the average Aussie, if you see Ben Roberts-Smith, wave and give him a thumbs up.” When he appeared as a witness in the Federal Court two years ago, Nelson said he had been cautioned by a senior member of government about his effusive support for the soldier, and went on to say that he had rung Roberts-Smith after reading the story about him: “I told him I’d read the story, I knew it was about him. I told him that I believed in him. I was very sorry that such an article should be published about him.”
The $25 million question is how Ben Roberts-Smith will foot the bill for his and Nine’s costs in the likely event that the court orders him to pay. It has been reported that his boss and principal backer, Seven Network magnate Kerry Stokes, lent him $2 million to pursue the action against Nine. Stokes, who was chairing the AWM board when the case was launched, yesterday expressed disappointment with the decision and appeared to try to dismiss it as a disagreement between soldiers.
“The judgement does not accord with the man I know,” Stokes said. “I know this will be particularly hard for Ben, who has always maintained his innocence. That his fellow soldiers have disagreed with each other, this outcome will be the source of additional grief.”
It has been reported that the Stokes loan to Roberts-Smith was secured with his Victoria Cross medal. If so, this could well prove one of the worst commercial decisions in the shrewd businessman’s career.
As I have written previously, it would be politically and morally untenable for a soldier found to have committed murder to be allowed to keep a Victoria Cross — and an insult to the memory of all other VC winners. If Roberts-Smith’s right to wear the VC is revoked for dishonourable conduct, the medal will have little value beyond that of a historical curiosity, and certainly won’t be worth the $1 million-plus that Kerry Stokes has generously paid to acquire other Australian VCs for the AWM.
The court victory is another feather in the illustrious cap of veteran journalist Chris Masters but it cements McKenzie’s place as the pre-eminent Australian investigative journalist of his generation, if not all generations. Over two decades he has exposed a succession of scandals in Australian public, corporate and criminal life, but none more serious or consequential than the rot at the core of Australia’s armed forces. •