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Ben Roberts-Smith chose not to face his moment of destiny.
Nearly every day during the trial he strode through the sliding doors at Queens Square in Sydney in his well-fitted suit, offered a smile to the waiting press pack and took a seat at the back of the court, the very study of a man relaxed in the knowledge that “the truth would out”. But when the time came for the truth to be unveiled, only his spectre hung over the court.
The former soldier was spotted poolside in Bali on Wednesday, lying face down in a pair of Speedos.
It has become a cliche to say the stakes in this case were high. The reputation of Australia’s most decorated war hero, financially backed by media magnate Kerry Stokes of Seven West Media, and the reputations of two award-winning investigative journalists, writing for publications owned by media rival Nine, publisher of this masthead. The case has already cost a combined $25 million, even before any appeals. It was billed as a watershed moment for investigative journalism, a watershed moment for the military and perhaps the most significant defamation case in Australian history.
It is notoriously difficult for media defendants to win defamation cases on the basis that their publications are true – and in matters in which the allegations are so serious, the burden of proof is harder to establish than the usual standard. The Nine legal team had not only to prove that Roberts-Smith committed murders in a far-flung country nearly a decade earlier, but had to do so without using the new public interest test that came into law after the action was filed.
The level of risk for all parties was repeatedly noted in news reports about the proceedings during the 110-day trial, as though they might be forgotten in the day-to-day drama, where rifts were exposed between rival factions of the Special Air Service Regiment, along with an extra-marital affair and attempts by Roberts-Smith and his allies to bully his detractors into silence – all collateral in the painstaking task of proving that a Victoria Cross recipient was a murderer and a war criminal.
And yet as time trickled inexorably towards Justice Anthony Besanko delivering his decision on Thursday afternoon in courtroom 1, the stakes loomed formidably high. A crowd gathered outside the court: members of the public, school children, perhaps 100 journalists. Camera crews unfurled boom microphones. A contingent of Nine executives arrived in a black van. The lawyers in the courtroom took off their glasses. And put them on again. They ran their fingers through their hair.
In that tense half-hour after the courtroom doors were opened, it felt like the band was back together. There was Roberts-Smith’s attack dog solicitor Mark O’Brien, his silver mane swept back in its usual style, and his junior solicitor Monica Allen, whose hand-holding “social time” with Roberts-Smith during the case preparation raised a flurry of denials about a possible relationship and accusations of sexism when it was raised in court as a potential conflict of interest.
There was Roberts-Smith’s barrister, Arthur Moses, SC, looking funereal, though he did not yet have cause. There was the top spook resembling Mrs Tiggy-Winkle and Seven’s commercial director Bruce McWilliam, squinting into his phone.
Chris Masters and Nick McKenzie, the reporters whose stories were the subject of the complaint, sat at the bar table, with notebooks open and pens poised.
And then everyone was standing for the judge to enter the court and Besanko was uttering the crucial words that the respondents had established the substantial truth of imputations 2, 3, 4, 5, 6 and 9 on the mission to W108 and imputations 1, 2 and 3 on the mission to Darwan. There was a sharp intake of breath, because this meant that decorated war veteran Ben Roberts-Smith was reduced to a murderer, a bully and a war criminal – and investigative journalism was not dead.
If anyone was tempted to conclude this was an indictment on Australian soldiers at large, Masters offered a gentle correction on the steps outside the court, reminding the waiting press pack that it was Australian soldiers, after all, who had first brought Roberts-Smith’s war crimes to light.
“I don’t want people to think of this as a bad day for Australian soldiers,” Masters said. “I think of those soldiers that had not only physical courage but also moral courage. Nick and I know them well … and I’m proud that they’re out there.”
Besanko’s decision was also a vindication of Nine’s lead barrister Nicholas Owens, SC, who was drafted into play just weeks before proceedings were due to commence when Sandy Dawson was diagnosed with brain cancer after working on the case for more than a year. Dawson did not survive to see the outcome of his work.
The opposing counsel Arthur Moses was a squadron leader in the Royal Australian Airforce Specialist Reserve and an Assistant Inspector General of the Australian Defence Force who was practised in military law and defamation cases. It is not hard to imagine that Stokes envisaged him as the perfect candidate to run the case for Roberts-Smith.
It was a different story for Owens, who was an experienced commercial litigator and a university medallist at Harvard, but had never previously run a defamation case and was not a military specialist – a fact that Moses liked to remind the judge about.
“Your Honour, could I just raise an issue,” Moses interjected during Owens’s cross-examination of Roberts-Smith back in 2021. “It might be that my friend is not au fait with military issues, but … my friend has posed an issue based on an incorrect premise.”
Owens replied in a tone of studied patience. “I’m grateful to my friend,” he said. “I understand what I’m doing.”
Nobody can question that now.
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