Ben Roberts-Smith took the fight to The Age and The Sydney Morning Herald – it was a disastrous miscalculation

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Ben Roberts-Smith’s defamation case against The Age, The Sydney Morning Herald and The Canberra Times has now been dismissed in its entirety, leaving the Victoria Cross winner’s reputation in tatters. Roberts-Smith will be ordered to pay the newspapers’ costs of the proceeding, as well as his own.

Federal Court Justice Anthony Besanko found that the most serious imputations conveyed by a series of 2018 articles by journalists Nick McKenzie, Chris Masters and David Wroe – that Roberts-Smith murdered three prisoners under confinement in Afghanistan between 2009 and 2012 – were substantially true. Likewise, a number of other allegations published by The Age and the Herald: that Roberts-Smith ordered a fourth execution, assaulted two Afghans, broke the moral and legal rules of military engagement, disgraced his country and bullied a fellow soldier.

The Federal Court found stories in The Age and The Sydney Morning Herald about Ben Roberts-Smith were substantially true.Credit: Oscar Colman

These are devastating findings. Roberts-Smith’s vigorous denials of any involvement in the matters alleged by The Age and the Herald have been rejected. In short: Roberts-Smith lied.

Although some aspects of the newspapers’ reports were not found to be justified – including allegations concerning two murders and an assault of a former lover in Canberra in 2018 – the substantial truth of the other allegations meant that the unproved matters did not further harm Roberts-Smith’s reputation.

The Age and the Herald’s journalism and journalists have been comprehensively vindicated.

Roberts-Smith took the fight to The Age and the Herald by suing. In so doing, he dared the newspapers to try to prove, to the civil standard, that he had committed war crimes. The result has shown that to be a disastrous miscalculation, although that was clear enough well before the verdict.

These were always stories that deserved to be told. It should not have required one of the most expensive trials in the nation’s history to establish that.

Having been sued, The Age and the Herald had little option but to fight the case. These articles were an exercise in serious investigative journalism involving allegations engaging the highest public interest. What could be more important than the exposure of war crimes, committed in Australia’s name, on a foreign battlefield? And how can organs of the press claim to be watchdogs who hold power to account if they are chilled by the risk and cost of litigation from exposing those allegations?

Other consequences foreseeably followed from Roberts-Smith’s decision to sue. Reports following the minutiae of the daily evidence eclipsed the publicity that attended the original articles. Even with a complete victory, Roberts-Smith would have stood little prospect of fully rehabilitating his reputation.

The Age and the Herald did not instigate the litigation, and so, in that sense, had less agency than Roberts-Smith. The mastheads emerged unscathed; rare for a publisher in a case of this prominence. The credibility of the newspapers and three of their star journalists is enhanced.

Age investigative journalist Nick McKenzie addresses media after the judgment on Thursday.Credit: James Brickwood

Aspects of the case merit particular attention.

It is striking that this was, in substance, a war crimes trial masquerading as a defamation action. At the time The Age and the Herald’s articles were published, Australian defamation law had a limited defence that protected publishers who had acted reasonably in all the circumstances. That defence has been widely perceived to be ineffective and was not relied upon by the newspapers. As a result, the focus at the trial was on whether the newspapers could prove the substantial truth of the allegations made by its sources, rather than the competence of the journalism.

While it is understandable that it played out that way, it is unsatisfactory. Allegations of war crimes deserve a criminal trial before a jury. It’s noteworthy that a private media organisation has been able to investigate, publish and defend these allegations when the Crown has been unable to bring a prosecution, despite its full array of coercive powers.

Roberts-Smith has not been charged with, let alone convicted of, anything, but will now forever wear the stain of having been found by a judge, to the civil standard, to be a war criminal. Further consequences may well follow, including a review of his honours and consideration of criminal prosecution.

The opposite result would also have been unsatisfactory. Had The Age and the Herald lost the case, the masthead would have been ordered to pay massive damages without there having been a focus on the merits of its journalism – how it researched, confirmed and checked what it reported. In other jurisdictions such as the UK and the US, those are the primary defences. At the time these stories were published, there was no defence in Australian law that considered whether this was a story that deserved to be told in the public interest.

And yet, that was surely the core of it. These were always stories that deserved to be told. It should not have required one of the most expensive trials in the nation’s history to establish that.

No publisher or broadcaster, however deep its pockets, can afford to defend many cases of this kind. The temptation for all media, in the face of the eye-watering costs and risks involved in preparing and then defending serious investigative journalism, is to retreat to cheaper and safer options; to prefer trivia over substance and comment over news. We may never know what important stories are spiked, or never pursued in the first place, because a publisher or broadcaster does not have the appetite or resources to fight for the public’s right to know.

At the same time, and just as disturbing, few plaintiffs have access to the resources necessary to pursue a case of this scale. Roberts-Smith was a rare exception. Because of those resources, he had options that are not available to most Australians. His decision to pursue this case has been exposed as an irretrievable mistake. But publishers and broadcasters, wary of litigation, know they face a higher cost for exposing suspected wrongdoing by the rich and powerful than by the rest of us. That is the precise opposite of the outcome our laws should strive to promote.

Dr Matt Collins AM KC is a media law barrister. He has represented Nine in a number of defamation disputes.

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