The end
We’re going to wrap up the live blog on the judgment in the Ben Roberts-Smith defamation case here on what has been an historic day.
Justice Anthony Besanko dismissed the defamation case brought against the SMH, the Age and the Canberra Times, and journalists Nick McKenzie and Chris Masters by Australia’s most decorated living soldier.
Besanko found that on the balance of probabilities, Roberts-Smith kicked a handcuffed prisoner off a cliff in Darwan in 2012 before ordering a subordinate Australian soldier to shoot the injured man dead.
And in 2009, Roberts-Smith ordered the killing of an elderly man found hiding in a tunnel in a bombed-out compound codenamed “Whiskey 108”, as well as murdering a disabled man with a prosthetic leg during the same mission, using a para machine gun.
Besanko ruled that allegations Roberts-Smith was complicit in further murders in Syahchow and Fasil, all in southern Afghanistan in 2012, were not proven, but found the newspapers had proven that Roberts-Smith bullied and assaulted his comrades.
He also ruled the newspapers however had failed to prove their allegation that Roberts-Smith committed an act of domestic violence in 2018 against a woman with whom he was having an affair. Nevertheless the newspapers succeeded on a contextual truth defence and their publication of the allegation did not defame him.
Roberts-Smith has 21 days to appeal, and a hearing on costs has been set for 29 June.
The bill for the years-long trial has been estimated to be upwards of $35m.
The ruling was welcomed by the publishers and journalists, with McKenzie describing the day as a day of justice.
The SAS Association criticised the “trial by media” reporting, while Seven West’s executive chairman, Kerry Stokes, who hired Roberts-Smith and financially supported the legal action with a $2m loan said he was disappointed with the outcome.
Roberts-Smith appears now almost certain to lose his Victoria Cross medal that he surrendered as collateral for the loan.
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The Ben Roberts-Smith v the Media podcast in case you haven’t heard it yet goes through in-depth through the court hearings. You can find all the episodes below.
A federal court defamation case finding that Ben Roberts-Smith is, on the balance of probabilities, a cold-blooded battlefield murderer has done more than leave Australia’s most decorated living soldier in reputational tatters. It has, perhaps irrevocably, tarnished the carefully curated, revered legend of Anzac and its spurious myth of the white-hatted, egalitarian, hard-but-fair battlefield conduct of the celebrated Aussie digger.
With a federal court judge finding Ben Roberts-Smith – the country’s most decorated soldier – either murdered or was complicit in and responsible for the murder of unarmed civilians while serving in the Australian military in Afghanistan, Australia must now turn its attention to the real victims of this conflict.
Stokes says judgment 'does not accord' with man he knows
AAP has a statement from Seven West executive chairman Kerry Stokes, who employed Ben Roberts-Smith in Queensland and backed his legal effort.
Stokes said he was disappointed with the judgment.
The judgment does not accord with the man I know.
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.
I haven’t had a chance to have a discussion with Ben as yet, but I will when he has had a chance to fully absorb the judgment.
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Media union says case highlights deficiencies in Australia’s defamation laws
The Media, Entertainment & Arts Alliance has issued a statement welcoming the judgment, saying it was an “important affirmation of the role of journalism to investigate and report on serious matters of public interest”.
But it also said the time-consuming, costly case demonstrated the deficiencies in Australia’s defamation laws.
MEAA media federal president Karen Percy said:
This is an important case upholding the media’s important role in undertaking public interest investigations and the public’s right to know.
But it highlights how Australia’s defamation laws have worked to constrain investigative journalism and attack legitimate reporting.
This case began in 2018 and has come at immense personal cost to both Nick McKenzie and Chris Masters, and at great financial cost to their media outlets. Yet today’s finding is a vindication of their journalism.
MEDIA RELEASE: MEAA welcomes today’s decision by Justice Besanko in the Ben Roberts-Smith defamation case. https://t.co/3yzowPuBu9 #MEAAmedia #pressfreedom pic.twitter.com/1vztL6rjcx
— MEAA (@withMEAA) June 1, 2023
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I’m going to hand you over to my colleague Josh Taylor. Thanks for sticking with me this afternoon.
Defamation expert David Rolph, a professor at the University of Sydney, has broken down the difference between the defences of truth and contextual truth.
You’ll remember that Justice Anthony Besanko found the newspapers had proven the truth of some of the defamatory imputations in their articles, including the most serious allegations that Roberts-Smith committed war crimes and murder.
They were unable to prove the truth of other allegations, including one of domestic violence by Roberts-Smith against a former lover. But the court found that the newspaper had made out a truth of contextual truth for that and other imputations.
Rolph breaks down the difference in a piece for the Conversation:
Substantial truth means what is sounds like – that the allegation published was, in substance, true. Defamation law does not require strict, complete or absolute accuracy. Minor or inconsequential errors of detail are irrelevant. What matters is: has the publisher established what they published was, in substance, true?
Contextual truth is a fallback defence. The court has to weigh what has been found to be true against what has been found to be unproven. If the true statements about the plaintiff were worse than the unproven statements, then the plaintiff’s reputation was not overall damaged by the unproven statements, and the publisher has a complete defence.
In other words, Besanko found most of the imputations to be true. And when considered against those which were not proven to be true, the remaining unproven imputations did not damage Roberts-Smith’s reputation.
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The next question to be resolved by the court is the not unsubstantial matter of who pays what legal costs for the proceedings.
The costs in this staggeringly complex and lengthy case are estimated at between $25m and $35m.
The newspapers have asked for more time to consider their position on costs with the matter due back in court on 29 June.
The usual rule is that the losing party pays their own costs and those of the winning party.
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You can read Justice Anthony Besanko’s full summary of his decision here:
The decision dismissed the defamation proceedings brought by Ben Roberts-Smith, finding the newspapers had made out their defences of truth or contextual truth to all 14 defamatory imputations. That included proving the truth of imputations that Roberts-Smith committed war crimes and murdered unarmed Afghan villagers.
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Nine has announced a special edition of 60 Minutes on Sunday night at 8.40pm will reveal more information about what really happened in Afghanistan.
As part of his report, Tom Steinfort, cameraman Scott Morelli and sound recordist Matt Brown made a dangerous journey to Kabul to speak to Afghan witnesses to Robert-Smith’s alleged crimes. It’s believed the 60 Minutes team are the first Australian media to travel to Afghanistan since the Taliban reclaimed control of the country in August 2021.
Images are continuing to filter in from outside court earlier this afternoon, following the landmark verdict delivering victory to the Sydney Morning Herald, the Age and the Canberra Times.
Arthur Moses SC, who represented Roberts-Smith, said he and his client would be considering the judgment.
Investigative journalists Chris Masters and Nick McKenzie said the case was the toughest battle of their careers but hailed today as a “day of justice”.
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The Walkley Foundation, responsible for awarding the highest honour available to Australian journalists, has described the work of Nick McKenzie and Chris Masters as “investigative journalism at its best”.
Investigative journalism at its best. The Walkley Foundation commends multi-Walkley winners Nick McKenzie @Ageinvestigates & Chris Masters for their determined reporting on Ben Roberts-Smith. And congratulates their publishers @smh @theage @canberratimes for their brave support. https://t.co/7wYbudqYFX
— Walkley Foundation (@walkleys) June 1, 2023
SAS association criticises 'public airing' of allegations
Martin Hamilton-Smith, the chairman of the national SAS Association, says the vast majority of Special Air Service members fought bravely for their country and are being re-traumatised.
Speaking to the ABC, he described today as a “very disappointing day” and criticised the “public airing of issues” in the media and public domain.
The judgement today, which is by the way a defamation matter not a criminal proceeding, is going to be disappointing to many. I’m very concerned as the national chairman for our veterans and their families, because the public airing of all these issues, trial by media, the way it has been handled generally, not just this trial but the general made in public of the Brereton inquiry, the trial by association, has been very traumatic for a group of soldiers, 99.9% of whom did nothing more than fight bravely for their country.
They are being re-traumatised after having gone through a difficult war. Now, with all these matters, the sooner they are dealt with the better.
Hamilton-Smith then downplayed the significance of the defamation ruling, saying the only way to get to the truth was in a criminal court.
I think the only way you will get the real truth of this is to get it into the criminal court, where both sides of the story can be told, and beyond reasonable doubt the facts established. I don’t think the judgement gives us anything other than resolving the defamation case. I know it will be interpreted differently in the media. To get to the real truth of things, you have to get these matters before a criminal court.
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Arthur Moses SC, who represented Ben Roberts-Smith, said he and his client would consider the judgment. Moses left the courtroom earlier.
He said:
We’ll obviously consider the lengthy judgement that his honour has delivered and look at issues.
Arthur Moses leaving court @GuardianAus pic.twitter.com/EIAxpG9jlt
— Elias Visontay (@EliasVisontay) June 1, 2023
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Shadow foreign affairs minister Simon Birmingham says today will be a “difficult day” for many serving personnel. He says Australia should be proud of the overwhelming majority of those serving in the defence force.
Birmingham is speaking to the ABC:
This is certainly significant … is a legal process that deserves to be respected. It’s not one the commonwealth is a party to, it was between two parties in a civil proceedings matter.
But I think there are a few broad principles we need to bear in mind. One is that Australia is a country that applies a standard, in terms of expectations of our serving personnel and the transparency and accountability, that few other nations in the world apply. We should be proud of those standards but we should also be proud overwhelmingly of our personnel, of all who have served.
And this will be a difficult day for many of those, in terms of the way it is reported and how it is reflected, and as a country it is important for to speak very clearly of our thanks and pride for those who have worn the uniform and continue to wear the uniform in the Defence of Australia.
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Pictures are just coming in of Nick McKenzie and Chris Masters speaking outside of court earlier, welcoming their landmark win in the federal court.
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Nine describes decision as 'vindication' and 'critical step towards justice'
Nine has released a statement describing the findings as a “critical step towards justice” for families of the Afghan villagers and a “vindication for journalists”.
The statement from James Chessell, Nine’s managing director of publishing, and Tory Maguire, the executive editor of the Sydney Morning Herald and the Age, said:
The judgement is a vindication for journalists Nick McKenzie and Chris Masters, who began reporting this difficult and complicated story more than seven years ago.
It is a vindication for the many people in our newsrooms and our organisation who supported this important public interest journalism.
And, most importantly, it’s a vindication for the brave soldiers of the Australian defence force’s SAS who served their country with distinction and then had the courage to speak the truth about what happened in Afghanistan.
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War memorial urged to 'immediately remove' Roberts-Smith's uniform from display
The Greens’ defence spokesperson, David Shoebridge, has described the defamation judgement as “an important win for fearless journalism in the public interest”.
Shoebridge wrote on Twitter that if the judgement stands, the Australian War Memorial should “immediately remove Ben Roberts-Smith’s uniform from public display and to begin telling the entire truth of Australia’s involvement in that brutal war”.
If this judgment stands, the first step in correcting the official record is for the Australian War Memorial to immediately remove Ben Roberts Smith’s uniform from public display and to begin telling the entire truth of Australia’s involvement in that brutal war.
— David Shoebridge (@DavidShoebridge) June 1, 2023
The war memorial has been contacted for comment.
Shoebridge also urged the Albanese government to “urgently progress compensation for families of victims of alleged Afghanistan war crimes, one of the key outstanding recommendations of the Brereton report”.
Shoebridge further called on the attorney general to cease the prosecution of whistleblower David McBride.
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'Vindication for public interest investigative journalism': rights groups
The Australian Centre for International Justice and the Afghanistan Human Rights and Democracy Organisation have welcomed the ruling, saying it is “a vindication for public interest investigative journalism”.
They said in a joint statement:
Together with whistleblowers, survivors and human rights defenders from Afghanistan, investigative journalists have helped set in motion several processes to reckon with Australia’s legacy of military engagement in Afghanistan, ranging from criminal investigations to reform of military education and training on the laws of armed conflict.
In a conflict marked by near-total impunity for human rights violations, these processes – which will continue for many years to come – represent an important opportunity to uphold Australia’s commitment to international humanitarian law and provide some measure of justice to victims and affected communities.
Fiona Nelson, the director of legal Advocacy at the Australian Centre for International Justice, said:
The road to accountability, truth and justice is a long one. This case is an important reminder that we need courageous public interest journalism to help us get there.
These proceedings were also notable for the participation of witnesses from Afghanistan who gave evidence via videolink from Kabul.
Hadi Marifat, the executive director at the Afghanistan Human Rights and Democracy Organisation, added:
Survivors and victims’ families have a right to full disclosure of the truth and acknowledgement of the harm caused by Australia’s military operations.
Investigative journalism has been critical in uncovering the truth and raising public awareness about what took place.
Australia’s response must be receptive to the needs and priorities of victims.
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McKenzie describes the court battle as the 'toughest' fight of his career
Nick McKenzie and Chris Masters are speaking outside court.
McKenzie describes the battle as the “toughest” of his career. He describes today as a “day of justice”.
He said he and Masters did not want to go to court.
None of the SAS witnesses wanted to go to court. Ben Roberts-Smith brought this case, he came almost every day. But he did not come today. He’s in Bali, doing whatever he’s doing.
Earlier, James Chessell, Nine’s managing director of publishing, said:
Publishing a story of this magnitude is never easy but high-quality investigative journalism is vital to a thriving democracy.
Chris Masters thanks the newspapers for publishing the stories and backing their work.
I think it will go down in history as one of the great calls.
Masters says no one comes out of a matter like this feeling “exalted and triumphant”. He praises his legal team.
What was wonderful about this was such a coalition of a great team, led by Nick Owens.
He said journalists often feel “on their knees”.
It often feels so hard to do ordinary work, let alone work like this, so this judgment comes as a great relief.
Masters also says he wants to pay tribute to the soldiers who came forward to give evidence.
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The defence minister, Richard Marles, has refused to comment on the outcome of the defamation case.
In response to a request for comment, a spokesperson for Marles said:
This is a civil defamation matter to which the commonwealth is not a party and it would be inappropriate to provide comment.
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I’m outside the federal court building in Sydney, where there’s a large media presence waiting for the parties to leave court.
There must be more than 100 people waiting outside the doors, mostly photographers, journalists, television presenters and microphone-toting producers.
The size of the media pack is such that passers-by are even stopping and watching on. There are city workers on break, cyclists, and even some school kids.
The scene outside court @GuardianAus pic.twitter.com/WwVAybe1Pa
— Elias Visontay (@EliasVisontay) June 1, 2023
It’s quite a scene. We’ll bring you more once the parties exit and if they make any statements about the judgment.
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'Important win for journalism': media union
The union representing Australia’s journalists has described the court win as a “big and important win for journalism and press freedom in Australia”.
Karen Percy, who leads the media section at the Media, Entertainment and Arts Alliance, tweeted that the judge’s ruling “upholds the media’s important role in undertaking public interest investigations & in the public’s right to know”.
The ruling just now by Justice Anthony Bresanko in the Ben Roberts-Smith defamation case is a big and important win for journalism and press freedom in Australia. It upholds the media’s important role in undertaking public interest investigations & in the public’s right to know.
— Karen Percy (@PercyKaren) June 1, 2023
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We have just published a full report on what is a remarkable win for the Sydney Morning Herald, the Age and the Canberra Times.
Our reporter Ben Doherty, who has been exhaustively covering this case, writes:
Ben Roberts-Smith VC, Australia’s most decorated living soldier, has lost a defamation case in which he was accused of multiple murders of unarmed civilians in Afghanistan, a federal court judge has found.
Justice Anthony Besanko found that, on the balance of probabilities, Roberts-Smith kicked a handcuffed prisoner off a cliff in Darwan in 2012, before ordering a subordinate Australian soldier to shoot the injured man dead.
And in 2009, Roberts-Smith ordered the execution of an elderly man found hiding in a tunnel in a bombed-out compound, as well as murdering a disabled man with a prosthetic leg during the same mission, using a Para Minimi machine gun.
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Investigative journalist Nick McKenzie has tweeted his initial response to the major victory.
Justice.
— Nick McKenzie (@Ageinvestigates) June 1, 2023
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Court adjourns after landmark win for newspapers
Justice Anthony Besanko has now adjourned.
His ruling delivers a massive win for the three newspapers and investigative journalists Chris Masters and Nick McKenzie.
It ends a marathon, expensive trial, one of the most significant in Australia’s history.
Besanko has dismissed the three actions against the Sydney Morning Herald, the Age and the Canberra Times.
That is on the basis that the newspapers have proven the truth of most of the defamatory imputations alleged by Roberts-Smith. That includes the most serious imputations that he committed war crimes during the raids on the Whiskey 108 compound and the village of Darwan.
On the Whiskey 108 raid, it was alleged that Roberts-Smith found two men who were unarmed and surrendered. Roberts-Smith allegedly ordered a junior soldier on his patrol to execute the elderly man, before manhandling the man with the prosthetic leg outside the compound, where he threw him to the ground and fired his Para Minimi machine gun into his prone body.
On the Darwan raid, Roberts-Smith was alleged to have kicked a handcuffed villager named Ali Jan off a cliff and then ordering a subordinate to shoot him.
The court found the imputations carried in relation to those two raids were proven to be true.
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The parties are now discussing the major issue of costs. The newspapers want 21 days to consider an application for costs and third-party costs.
Besanko lists the matter for 29 June to consider costs.
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The verdict has effectively found that the media outlets have proven the truth of the most serious allegations involving the raids at Whiskey 108 and Darwan.
My colleague Ben Doherty, who is in the courtroom, says the relief is palpable from the two journalists involved in the case: Chris Masters and Nick McKenzie.
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Besanko dismisses proceedings against media outlets in major win for newspapers
Justice Anthony Besanko has dismissed the proceedings against Roberts-Smith, after finding that the newspapers have proven some of the allegations of war crimes against him.
Besanko agrees to delay the publication of the judgment to ensure that no national security sensitive information is inadvertently released.
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Judge rules media outlets establish truth of some allegations, not of others
Besanko delivers judgment, finding that the media outlets have established the truth of some of the allegations, but not of others. But he finds the outlets have established the defence of contextual truth in the remaining matters. It means the outlets have successfully defended the case.
He said:
The applicant’s conduct and actions on the mission to W108 as found means that the respondents have established the substantial truth of Imputations 2, 3, 4, 5, 6 and 9;
The applicant’s conduct and actions on the mission to Darwan as found means that the respondents have established the substantial truth of Imputations 1, 2 and 3;
The applicant’s conduct and actions on the mission to Chinartu as found means that the respondents have established the substantial truth of Imputations 2 and 3;
The respondents have not established the Particulars of Truth with respect to the mission to Syahchow on 20 October 2012;
The respondents have not established the Particulars of Truth with respect to the mission to Fasil on 5 November 2012;
With respect to the alleged bullying of Person 1, the respondents have established the substantial truth of Imputation 12;
With respect to the alleged unlawful assaults on PUCs, and this relates to Imputations 10, 11 and 14, the respondents have established the substantial truth of those imputations;
With respect to the alleged act of domestic violence and Imputations 7 and 8, I am not satisfied that Person 17’s evidence is sufficiently reliable to form the basis of a finding that the assault occurred and that Imputations 7 and 8 are substantially true. However, I consider that the respondents have made out the defence of contextual truth with respect to those imputations.
With respect to the alleged threat to “Trooper J” and Imputation 13, I am not satisfied that the evidence is sufficiently clear to support a threat of the type advanced by the respondents and that they have shown the imputation to be substantially true. However, I am satisfied that the respondents have made out a defence of contextual truth with respect to that imputation.
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Besanko says the case has been delayed because of the Covid pandemic. It was also complicated by the national security concerns and sensitivities that a trial of this type presents.
The trial was interrupted because of the effects of the Covid-19 pandemic and thereafter occupied a substantial period of time a number of SAS soldiers gave evidence. Their identity was protected and in the case of their evidence in open court they were heard but not seen. There were also a number of sensitive documents and sensitive information that necessitated the court sitting in closed sessions.
He says he will provide a set of restricted reasons, which he describes as “closed-court reasons”.
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The judge is now summarising the truth defences employed by the newspapers.
The most serious allegations made in the particulars of truth are that the applicant murdered or was complicit in and responsible for the murder of Afghan males who were under control or containment.
Besanko says the truth defence also raises the following allegations:
The particulars of truth also contain serious allegations the applicant assaulted Person 17 on or about 28 March 2018 in a hotel room in Canberra. In addition there are allegations against the applicant of assault of Afghan males under detention, bullying of an Australian soldier and making a threat to another Australian soldier.
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Other articles, Besanko says, allegedly carried the imputation that Roberts-Smith authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat. They also allegedly implied that he engaged in a campaign of bullying against a small and quiet soldier called Trooper M (Person 1) which included threats of violence.
The series also allegedly implied that Roberts-Smith threatened to report Trooper J to the international criminal court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the applicant’s.
Besanko says the first question is whether the imputations that Roberts-Smith has alleged were conveyed. He finds that the group two articles did carry the imputations that Roberts-Smith has alleged.
He also finds that the group three articles also carried the defamatory imputations as alleged by Roberts-Smith.
He is now turning to whether the media outlets have made out their defences of truth.
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Besanko is summarising the basic details of the case.
The judge says the first group of the articles involved in the case are alleged to have defamed Roberts-Smith by accusing him of kicking Ali Jan, a handcuffed civilian, off a cliff and ordering a subordinate to kill him. The imputations of these articles were allegedly that he “broke the moral and legal rules of military engagement” and “disgraced his country Australia and the Australian army by his conduct”.
The judge says the second group of articles accused Roberts-Smith of ordering a junior soldier on his patrol to execute an elderly man, before manhandling another man with the prosthetic leg outside the compound, where he threw him to the ground and fired his Para Minimi machine gun into his prone body.
The third group of articles were that he committed domestic violence against a woman in his hotel, Besanko says.
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The judge begins by reminding that what he is about to deliver is a summary of his decision only.
This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the court. The only authoritative statement of the court’s reasons is that contained in the published reasons for judgment.
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Judge arrives, prepares to read judgment summary
Federal court justice Anthony Besanko has arrived on the bench and is preparing to read a summary of his judgment.
Stick with us.
We’re not far away now.
It’s important to note that Ben Roberts-Smith denies all the allegations he claims are imputed by the series of articles published by the Sydney Morning Herald, the Age and the Canberra Times.
In defamation trials like this, which are civil proceedings, the court uses a lower threshold to determine the truth of the imputation. It will decide whether the imputations are true on “the balance of probabilities”.
In criminal trials, the threshold is much higher, being “beyond reasonable doubt”.
With that in mind, two of the most most dramatic allegations put forward by the media outlets are:
That Roberts-Smith, on a mission to the southern Afghan village of Darwan in 2012, marched a handcuffed man named Ali Jan to stand above a 10-metre-high cliff that dropped down to a dry riverbed below. Roberts-Smith was alleged to have kicked him, causing him to fall from the cliff and sustain serious injuries, and then ordered a subordinate soldier to shoot Ali Jan dead before the body was dragged into a cornfield. Roberts-Smith denies this and says the man was a “spotter” – a forward scout for enemy insurgents – found hiding in the cornfield and carrying a radio. He says he was a legitimate target.
That, during a raid on a compound codenamed Whiskey 108 in 2009, two men were found hiding in a secret tunnel. The media outlets said the two men were unarmed and surrendered. Roberts-Smith allegedly ordered a junior soldier on his patrol to execute the elderly man, before manhandling the man with the prosthetic leg outside the compound, where he threw him to the ground and fired his Para Minimi machine gun into his prone body. Roberts-Smith denied the allegations and said there was no one in the tunnel. He said that two Afghan men were killed at Whiskey 108 legitimately, in accordance with the Australian troops’ rules of engagement: they were “squirters” – Taliban members trying to flee the compound.
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The executives and the reporters from Nine Entertainment have arrived at the federal court. Nine’s managing director of publishing, James Chessell, executive editor Tory Maguire and investigative journalists Nick McKenzie and Chris Masters have all entered the Sydney court.
Veteran journalist Masters and multi-award winning reporter McKenzie wrote the articles in 2018 for the Age and the Sydney Morning Herald. The articles also appeared in the Canberra Times, which is now under different ownership.
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We’re about half an hour away from Justice Anthony Besanko’s decision. We’ve confirmed that he will deliver a summary of his decision, despite the commonwealth’s intervention to attempt to delay the release of his full judgment on national security grounds.
While we wait, can I recommend the excellent Guardian Australia podcast on the case, featuring reporter Ben Doherty.
It is a phenomenal piece of work which explores the case in gripping detail.
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This case is extraordinary for many reasons, not least of which is its sheer scale and cost. The trial, one of the longest-running defamation cases in Australian history, took 110 days and heard from 41 witnesses.
Legal costs are estimated to range from $25m to $35m, a staggering sum.
Defamation expert Jaqueline Meredith of Swinburne University said the complexity of the case was due to the media outlets’ use of the truth defence.
A key reason for the complexity in this case is the reliance by the newspapers on the defence of truth. This involves a complex and lengthy fact-finding exercise.
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This afternoon’s decision will have far-reaching impact which will extend beyond the walls of the federal court.
My colleague Ben Doherty reports this morning that it could have lasting consequences for media outlets’ appetite for investigative journalism in Australia.
He writes:
For the newspapers, beyond a calamitous financial impact, a loss could be expected to seriously dampen their enthusiasm – and the Australian media’s more generally – for critical, public interest investigations.
Should Roberts-Smith win, his vindication will, in many eyes, restore his former standing as a decorated veteran venerated for his gallantry in battle: a contemporary embodiment of Australia’s Anzac legend.
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Just an addendum to that last post.
Guardian Australia has independently confirmed that the government will seek to delay the release of the full judgment until Monday to screen for sensitive national security information.
But it is understood there will not be any delay to the court delivering a summary of the judgment. That will still be read in court at 2.15pm today.
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Commonwealth intervenes to delay release of full judgment
The commonwealth is reportedly seeking to intervene to ask that Justice Anthony Besanko delay publishing his full written reasons in the case until 2pm on Monday at the latest, so that they can be screened for any inadvertent disclosures of sensitive information.
The Sydney Morning Herald reports that the commonwealth will ask Besanko to delay releasing his written judgment.
Besanko was planning to read out a shorter summary of his reasons at 2.15pm. It is currently unclear whether the commonwealth’s attempted intervention would also delay the release of a summary of the case.
Besanko is expected to consider the request after 2.15pm.
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While we wait for the judgment of Justice Anthony Besanko, let’s recap what this case is all about.
At its heart, the case is about whether three newspapers – the Sydney Morning Herald, the Age and the Canberra Times – defamed Ben Roberts-Smith in a series of articles published in 2018.
Roberts-Smith sued the papers in the federal court alleging the articles made 14 defamatory imputations against him.
Those defamatory imputations include that he “murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him” and “committed murder by machine gunning a man with a prosthetic leg”.
The newspapers defended the case at trial. They relied on a truth defence, meaning they were obliged to prove the truth of the defamatory imputations in their articles.
The trial, which took 110 days, ended in July last year. Justice Besanko has been deliberating on his judgment in the time since, and will deliver it today at 2.15pm.
My colleague Ben Doherty has prepared this useful explainer of the case here:
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Hello and welcome to our live coverage of the federal court’s verdict in the blockbuster defamation case brought by Ben Roberts-Smith.
The court will soon decide whether Australia’s most decorated living soldier was defamed by a series of newspaper articles accusing him of murdering unarmed civilians while serving in Afghanistan.
The trial has been one of the most dramatic and costly defamation cases in memory.
We are expecting a judgment to be handed down at 2.15pm in the federal court in Sydney, delivered by Justice Anthony Besanko.
Stick with us – we’ll bring you all the developments as they happen.
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