Not with a bang but a whimper. With a simple “this court is adjourned”, Ben Roberts-Smith’s long-running defamation trial was, suddenly, quietly ended.
For a trial steeped in drama and in pathos, that has seen more than 100 days of extraordinary allegation and stunning evidence, it was a prosaic conclusion.
Before a bar table groaning with post-nominals, 42 witnesses were called, most under force of subpoena, most anonymised for national security reasons.
They came to the quiet formality of Sydney’s federal court building from all over the world: they testified from Afghanistan, were flown in from the US, or subpoenaed from distant military barracks. Some were sitting ministers of the crown, others serving senior officers in the SAS.
The trial generated tens of thousands of pages of transcripts, and hundreds of exhibits, held amid unprecedented security.
Sydney’s federal court building was transformed to accommodate anonymised military witnesses – entire floors were sealed off, windows blacked out to prevent spying from outside, and phones and smartwatches banned from closed court sessions. Some witnesses were brought into the building through secret entrances so they could not be seen – including by each other – and gave their evidence screened from public view.
The trial shone a glaring, often unflattering light, on the usually arcane world of Australia’s Special Air Service, revealing a troubled institution, factionalised and fractious, and deeply riven by internecine fighting over decorations and medals: in thrall, on some evidence, to a “warrior culture” steeped in violence.
And it laid bare the brutal reality of Australia’s decades-long war in Afghanistan: the strategic drift of the mission, the compromises and complexities of the fight against an elusive, ill-defined enemy, and the irredeemable toll taken on the handful of soldiers sent time and time again to the sharp end of a dirty, dangerous war.
The trial heard extraordinary testimony: allegations that a handcuffed prisoner was kicked off a cliff and shot dead; of a quavering teenager shot in the head described as “the most beautiful thing I’ve ever seen”; of laptops being burnt in backyards; of threatening anonymous letters; of women being surveilled and filmed in intimate moments; of clandestine evidence being buried in children’s lunchboxes.
Dramatically, three SAS soldiers – being interrogated about separate missions – refused in court to answer questions about what they did in Afghanistan, objecting on the grounds that any truthful answer they gave would be self-incriminatory. Each was accused of murder: each was permitted by the Justice Anthony Besanko not to answer.
“This trial, which has lasted over 100 days, has been called a great many things,” Roberts-Smith’s barrister Arthur Moses SC told the court in his closing submissions.
“The trial of the century, a proxy war crimes trial, and an attack on the freedom of the press. It is none of these. It is a case which has been brought because the respondents chose to defame Mr Roberts-Smith.
“This has been a case about how Mr Roberts-Smith, the most decorated Australian soldier, and a man with a high reputation for courage, skill and decency in soldiering, had that reputation destroyed by the respondents.”
Roberts-Smith is suing for defamation the Age, the Sydney Morning Herald, and the Canberra Times over reports he alleges wrongly portray him as a war criminal and murderer.
The newspapers are defending their reporting as true, including allegations Roberts-Smith was complicit in six murders while deployed to Afghanistan, was a bully, and a perpetrator of domestic violence. Roberts-Smith denies any wrongdoing.
Over many months during trial, the newspapers laid out, in painstaking detail, their allegations against Roberts-Smith.
Their lead barrister, Nicholas Owens SC, told the court that, for all its chaos, laws applied to war. Soldiers were not free to kill indiscriminately.
“Not a single one of the murders we allege … involved decisions that were made in the heat of battle … the ‘fog of war’”.
The allegations of murder before the court were the deaths of civilians or insurgents who had been placed hors de combat, Owens said.
“One matter is perfectly and unambiguously clear … once a person has been placed under control, no matter that he may be the most brutal, vile member of the Taliban imaginable, an Australian soldier cannot kill him. To do so is murder.”
By proxy, the trial has provided a glimpse into the unremitting violence and uncertainty of Australia’s war in Afghanistan, with a tiny cohort of soldiers asked to return again and again to a conflict that increasingly felt purposeless.
Former soldiers, some broken by mental anguish and post-traumatic stress, testified they had served up to 12 deployments.
They told the court of seeing comrades die, and being sent to “hit” insurgent redoubts over and over.
They sought an enemy who melted into the farms and the mountains during winter, only to re-emerge each spring fighting season.
One soldier told the court he resented being subpoenaed to give evidence against his former comrade.
Having testified he witnessed Roberts-Smith execute a disabled, unarmed prisoner, he said: “I still don’t agree with the fact BRS [Roberts-Smith] is here, under extreme duress, for killing bad dudes we went there to kill”.
Roberts-Smith has rejected all allegations of wrongdoing. His lawyers told the court the Victoria Cross he won for spectacular bravery was not an honour he sought, but, ultimately, a burden “thrust upon him”.
“It put a target on my back,” the man himself told the court.
His accusers were fabulists and fantasists, Roberts-Smith’s lawyers said, failed soldiers embittered by their own “cowardice”, and a “corrosive jealousy” towards their comrade’s successes.
This case has attracted unprecedented public attention – there are few in Australia without an opinion on Ben Roberts-Smith. But this trial ultimately answers to a constituency of one.
Justice Anthony Besanko, an experienced federal court judge who has relocated from Adelaide to Sydney for this trial, is the sole arbiter who will decide, on a balance of probabilities, which version of events to believe.
Authoritative – and occasionally droll – he has been otherwise inscrutable from the bench, rarely interjecting, allowing broad lines of questioning, and quietly marshalling the masses of evidence spread before him.
He has now adjourned the court, and he will retire to write one of the most consequential judgments the country has heard in many years.
A wider reckoning
But Roberts-Smith’s defamation trial does not exist inside a vacuum, and the broader context is potentially even more momentous.
The Australian Federal Police and the Office of the Special Investigator – especially established to investigate allegations of war crimes against Australian soldiers in Afghanistan – continue their investigations, with the very real potential that criminal charges could be laid against multiple Australian soldiers arising from their actions in Afghanistan.
Interim briefs of evidence have been sent by police to the commonwealth director of public prosecution.
Those investigations arose after the inspector general of the Australian Defence Force, Maj Gen Paul Brereton, a judge of the New South Wales court of appeal, began an investigation in 2016 into “rumours of serious misconduct by Australia’s special forces in Afghanistan”.
Released in 2020, Brereton’s report makes sobering reading. It found 25 Australian soldiers were credibly alleged to have murdered 39 Afghan civilians, in some cases executing detained non-combatants to “blood” junior soldiers before inventing cover stories and planting weapons on corpses.
None of the killings could be attributed to the “fog of war”, Brereton found, describing the actions as a “disgraceful and a profound betrayal” of the ADF.
In a paper written for the James Cook University Law Review in 2021, Brereton argued the imperative for nations to fully investigate – and if necessary prosecute – war crimes committed by their citizens.
“Fundamentally, laws are useless if they are not enforced, and a law which is not enforced soon becomes a dead letter.”
And war crimes differ from other crimes, he argued, “in that they affect not only the individuals concerned, but also the nation’s reputation and standing”.
“War crimes undermine the national intent in prosecuting a war … a nation’s preparedness to investigate war crimes by its own is a mark of a mature civilisation, and one way in which it can remedy the stain on its reputation occasioned by the commission of a crime in its name by one of its service personnel.”
National war hero an alleged murderer
But the defamation trial carries consequences of its own.
Roberts-Smith once enjoyed one of the most extraordinary reputations of any person in Australia.
The recipient of the country’s highest military honour, the Victoria Cross, he was lauded off the battlefield too. Chairman of the Australia Day Council and Father of the Year, he came to embody the very best of Australia’s military history, and to exemplify the rightness of Australia’s mission in Afghanistan, striving to bring peace to a land that had barely known it for generations.
The mission to Afghanistan was a failure: that land is once again benighted by the rule of the vicious Taliban. And Roberts-Smith stands accused of the most grave crimes there.
Roberts-Smith’s barrister, Arthur Moses told the court in his closing submissions the allegations were “of the most serious nature … [and] strike at the very heart of Mr Roberts-Smith’s morality and humanity”.
A court finding the allegations were true would have “life-changing”, irreparable consequences for him, Moses said.
“It would paint Mr Roberts-Smith as a murderer … a violent person and a domestic violence abuser.
“It would indelibly and permanently tarnish his standing and good name.”
Moses said the injury to Roberts-Smith’s reputation by the newspaper reports had been extreme: a consequence of the gravity of the allegations, compounded by his previously unimpeachable public profile.
“This case is not about money, it’s about the vindication of the reputation of Mr Roberts-Smith.”
Court costs and consequences
But, on one level, this case is absolutely about the money.
The court has heard Roberts-Smith’s once lucrative public speaking business – RS Group – has been all but expired with the publication of the allegations. His corporate career has stalled.
To run this defamation action, he has borrowed nearly $2m from his employer and benefactor, Channel Seven chairman Kerry Stokes.
However, the cost of the trial has spiralled far beyond those figures – conservative estimates put the total cost at beyond $25m – to be borne by the loser of this trial.
Any damages awarded could run to millions beyond.
The involvement of Stokes has drawn in wider institutions. Two of the newspapers being sued, the Age and the Sydney Morning Herald, are now owned by Nine Entertainment, the key competitor to Stokes’s Seven West network.
Stokes, a West Australian, is an avowed military buff and has close links to the Perth-based SAS. Roberts-Smith remains his employee, and Seven was also paying the legal fees of several of his trial witnesses (until this was revealed in court and the debt was shifted to Stokes’s private company).
If Roberts-Smith does not win, and cannot repay the loan, he will forfeit his medals.
Stokes has said, in that case, the medals will be donated to the Australian War Memorial in Canberra, of which he was longstanding chairman.
The stakes are existential on the other side too. The case is vital for the newspapers’ publishers, and Australian journalism more broadly. Despite the allegations from Roberts-Smith’s lawyers, these stories were not feckless sensationalism: the evidence revealed before the court has shown the painstaking work of years of careful investigation, leads patiently followed and information double- and triple-sourced.
A win for the newspapers would be seen as a victory for public interest journalism, for the freedom of speech and of the press, and for the Australian people’s right to know what is being done in its name and with its money.
A loss could damage journalism in Australia: news organisations’ enthusiasm for courageous public interest investigations would be rudely diminished.
A judgment is not expected for several months.
