IIn the quiet formality of the 18D court of the Sydney federal court, one of the most decorated soldiers in the history of the Australian military this week will take an oath, sit on the witness stand and begin to give evidence on what saw and did during the war. in Afghanistan.
Ben Roberts-Smith, the former SAS corporal and recipient of the Victoria Cross and Medal for Gallantry, begins defamation proceedings against three Australian newspapers on Monday.
He is suing Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports published in 2018 that he claims are defamatory because they describe him as someone who “broke the moral and legal rules of military combat” and committed war. . crimes including murder.
Roberts-Smith, 42, has consistently denied the allegations, saying they were “false”, “without foundation” and “completely without any foundation in the truth.”
In its claim statement – a legal filing detailing his accusations against the newspapers – Roberts-Smith said the articles carried libelous allegations that he, “while a member of the SAS regiment, murdered an unarmed and defenseless Afghan civilian, throwing him off a cliff and obtaining the soldiers under his command to shoot him … [and] He disgraced his country Australia, and the Australian army for his conduct. “
The Roberts-Smith statement said he had been “seriously injured” by the publication of the articles, and that his “commercial, personal and professional reputation has been and will be publicly discredited, hated, mocked and despised.”
Look for damages, including aggravated damages, interest and costs.
Newspapers will defend the truth of their reports.
His defense to the Roberts-Smith statement of claim states that Roberts-Smith is “a person who He broke the moral and legal rules of military combat.; a bully; a hypocrite in the sense that he manifested himself publicly in a way that was not consistent with the way he conducted himself within the SASR; and a person who does not deserve the good reputation that he enjoyed publicly ”.
The defense of newspapers details a series of alleged illegal actions, including that on September 11, 2012, in a town called Darwan, he had kicked an Afghan civilian named Ali Jan, who was unarmed, handcuffed and kneeling, from a cliff before ordering him to they will shoot.
The defense also alleges that on Easter Sunday 2009, Roberts-Smith shot a man with a prosthetic leg.
The prosthetic leg was “souvenirs” from her body and brought back to the Australians’ base, where it was used as a drinking container at the unauthorized soldiers’ bar, Fat Ladies’ Arms. Photographs of soldiers drinking beer from the leg circulate widely.
Roberts-Smith’s attorneys have previously told to court he shot a man with a prosthesis, who was a Taliban soldier, but whose leg had been carried to the base by another soldier and Roberts-Smith did not “remember” the leg or drink from it. Lawyers told the court that Roberts-Smith thought it “disgusting” to recall a body part, albeit artificial, of someone who had been killed in action.
The defense of newspapers alleges that Roberts-Smith committed or was an accessory to other murders during his stay in Afghanistan, and also alleges that the corporal intimidated and assaulted fellow soldiers, as well as Afghan civilians.
Newspapers also allege that in 2018 Roberts-Smith struck a woman he was having an extramarital affair with in the face, blackening her eye, and then pressured her to lie about the incident.
Newspapers have dropped a murder charge against Roberts-Smith, which involved Roberts-Smith swimming through a river and allegedly shooting an Afghan man.
The newspapers will claim that the murder took place, but they will no longer claim that it was illegal. Four paragraphs of his defense have been withdrawn.
Ben Roberts-Smith to take the stand
Judge Anthony Besanko will hear the case, without a jury, in federal court. It is scheduled to run for eight weeks, but is likely to last longer, potentially for three months.
The list of witnesses includes more than 70 people, including: Roberts-Smith’s ex-wife, Emma Roberts (formerly the soldier’s witness, now testifying against him); Afghan civilians whose family members were killed during military raids and former soldiers who served alongside Roberts-Smith, who will be compelled by subpoena to say what they did and what they saw.
While most of the evidence will be heard in public hearing, the case raises obvious national security concerns and some elements will be heard behind closed doors.
Besanko has ordered that Roberts-Smith present his evidence first.
The case will be opened by veteran defamation attorney Bruce McClintock SC, in one of his last cases before retiring.
And sometime during the first week, Roberts-Smith himself will take the stand, as the first witness.
The consequences are extremely personal
The consequences of this case can hardly be underestimated. Months of work and millions of dollars have already been invested in the legal efforts of both parties.
A victory for newspapers would be seen as a victory for public interest journalism and for the Australian public’s right to know what is being done on their behalf and with their money.
But if newspapers lose, beyond legal costs already estimated at $ 3 million and a potentially massive bill for aggravated damages, the media’s enthusiasm for public interest investigative journalism can diminish significantly.
For Roberts-Smith, once Australia’s father of the year, the consequences are highly personal.
A victory will be claimed in vindication of his vociferous and consistent denials of the accusations against him, a restoration, he would hope, of his former reputation.
If you lose, your public reputation will be irretrievably damaged. Many in Australia will see him as a war criminal.
While it will not be a criminal conviction, it is still a potential result of an ongoing investigation by the newly formed. office of special investigator, who will closely observe this trial.
And beyond that, at an even more basic level, Roberts-Smith could lose the physical medals that had distinguished his military career, if not the honorifics themselves.
He has offered his medals, including his Victoria Cross, as collateral to finance his defense.
Deeply polarized media landscape
The contest is also broader. This libel case has thrown the Australian media empires into a thinly-concealed battle, and drawn historic institutions like the Australian War Memorial.
Two of the defendant newspapers, Age and Sydney Morning Herald, are now owned by Nine Entertainment.
Roberts-Smith’s benefactor and sponsor is media baron Kerry Stokes, president of the newspaper and television network Seven West Media, one of Nine’s main competitors.
West Australian Stokes is an avowed military hobbyist and has close ties to the Perth-based SAS. Roberts-Smith, who left the military, works for Stokes as managing director of Seven West operations in Queensland.
And it’s Stokes who funded the Robert-Smith libel lawsuit, allegedly for nearly $ 2 million, agree to grant a loan to finance your employee’s action.
If Roberts-Smith does not win and cannot repay the loan, he will lose his medals.
Stokes has said that in that case, the medals will be donated to the Australian War Memorial in Canberra, of which he is president.
But this could present the war memorial with a potentially heinous dilemma.
Faced with that scenario, the monument would have to consider whether it could, in good conscience, display the medals of a soldier that a judge has believed killed bound and unarmed non-combatants, essentially “bought” for the monument by its own president.
The Roberts-Smith allegations have exposed, with great prominence, the enormous flaws that exist in Australia’s deeply polarized media landscape.
Stokes’ Seven television network and its newspaper The West Australian have been consistent and forceful in their defense of Roberts-Smith, calling the allegations uncredible or motivated by malice. Rupert Murdoch’s News Corp has also been supportive.
Nine and the public broadcaster ABC have continued to publish story after story, indictment after indictment, resisting attacks from opposition media, demands from the defendants, and highly public raids by police investigators.
The military whistleblowers, when identified, have been pursued by the police on charges.
Also at stake is the very history of Australia’s involvement in its longest war.
After 20 years of grueling and exhausting fighting, Australian troops are withdrawing from Afghanistan, following the United States out of the infamous graveyard of empires.
The Taliban are re-emerging, deadly violence is commonplace on the streets of Afghanistan’s cities, and peace, elusive there for generations, remains as far away as ever.
And in a courtroom in Sydney on Monday morning, a reckoning of that war begins.
George is Digismak’s reported cum editor with 13 years of experience in Journalism