Ben Roberts-Smith was a courageous soldier who sought neither decorations nor fame, but had a target placed on his back by his Victoria Cross, and his reputation torn down by jealous comrades, aided by credulous journalists, his lawyers have told the federal court in Sydney.
Closing submissions have begun in Roberts-Smith’s long-running defamation trial against three newspapers over reports he alleges defame him as a war criminal and murderer. He denies any wrongdoing.
The newspapers are defending their reporting as true, including allegations Roberts-Smith committed six murders while deployed to Afghanistan as a member of the SAS, was a bully and a perpetrator of domestic violence.
Roberts-Smith’s barrister, Arthur Moses SC, said the newspaper reports were based on “rumour, hearsay and contradictory accounts”. He said the journalists who wrote them were “all too willing to write sensationalist accounts” and had mounted a deliberate campaign to unfairly malign Roberts-Smith.
“Mr Roberts-Smith was an exceptional soldier; highly organised, disciplined, a leader, resourceful and extraordinarily brave,” Moses told the court on Monday morning.
“He did not seek, nor did he want any recognition for performing his duties as a member of the Australian Defence Force. What he did not expect is, having been awarded the Victoria Cross, he would have a target on his back.”
Moses told the court the defamation trial had been called “a great many things”, including the “trial of the century”, a “proxy war crimes trial” and an “attack on the freedom of the press”.
“It is none of these,” Moses said.
“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.”
Matthew Richardson SC, also appearing for Roberts-Smith, told the court the dispassionate nature of the legal proceedings “elide the fact this case is about a human being … who has suffered, who was once known as a hero, and who is now, thanks to the respondents, widely reviled as a murderer and an abuser of women”.
Nicholas Owens SC, acting for the three newspapers – the Age, the Sydney Morning Herald, and the Canberra Times – dealt in detail with the allegations Roberts-Smith had been involved in the murders of two men discovered hiding in a tunnel at a compound called Whiskey 108, in the village of Kakarak in southern Afghanistan in 2009.
The newspapers allege the two men were unlawfully killed: one, an elderly man, was allegedly murdered by an inexperienced Australian SAS soldier on the orders of his superior, Roberts-Smith, in a “blooding” incident; the second, who had a prosthetic leg, was allegedly “frog-marched” outside the compound, thrown to the ground and machine-gunned to death by Roberts-Smith.
Owens said the court had heard multiple accounts from soldiers on the ground at Whiskey 108 who gave “unchallenged evidence” that two men were pulled out of the tunnel. Other soldier witnesses testified they saw Roberts-Smith shoot dead the man with the prosthetic leg, while others have given evidence they saw Roberts-Smith ordering the execution of the elderly man.
Roberts-Smith has consistently maintained “nobody came out of the tunnel” and said the two men killed were legitimate insurgent targets. Roberts-Smith said he shot the man with a prosthetic leg, who was armed with a weapon and running outside the compound, while the elderly man was shot by another soldier whose identity he does not know.
Owens said the evidence from some of the soldiers called by Roberts-Smith to support his version of events had been completely disavowed by Roberts-Smith because it was not credible.
“But one can’t just pretend that a witness’s evidence didn’t happen,” Owens told the court.
Owens said those subpoenaed by the newspapers to give evidence were “honest men”, and their testimony was “accurate”. He said Roberts-Smith’s witnesses, by contrast, were compromised: “Each of those witnesses had an obvious motive to lie.”
“There isn’t a single witness that Roberts-Smith called in relation to Whiskey 108 who couldn’t be described as a close personal friend.
“Person 5 [Roberts-Smith’s patrol commander on the mission] has the additional motive to lie because he himself stands accused.”
Owens said evidence from a soldier anonymised as Person 38, called by Roberts-Smith and who gave evidence about “clearing” an orchard near the compound that was not supported by any other testimony, was “outright dishonest” or “hopelessly compromised”.
Owens told the court “your honour is confronted with a dilemma, that someone is lying”.
Lawyers for Roberts-Smith have not nominated a figure for damages and aggravated damages sought.
The cost of running the trial – which has heard more than 100 days of evidence with witnesses subpoenaed to testify from all over the world – has been estimated at $25m.
Closing submissions are slated to run to the middle of next week. A judgment from Justice Besanko is likely several months away.
