Fri May 16

Ben Roberts-Smith has lost an appeal in his long-running defamation case. Here’s why

Written by: Rick Sarre, Emeritus Professor in Law and Criminal Justice, University of South Australia

The full Federal Court has dismissed Ben Roberts-Smith’s appeal to have his defamation case loss overturned.

It is important in seeking to understand this judgement to know the history of the case.

In June 2023, Federal Court Justice Anthony Besanko handed down a 726-page judgement in the defamation case that Roberts-Smith, the most highly decorated serving member of the Australian Defence Force, had brought against Nine Entertainment news outlets.

Reporters for the Sydney Morning Herald, the Canberra Times and The Age had alleged, in 2018, that Roberts-Smith, a patrol commander with the Australian Special Air Service Regiment, was a war criminal. They maintained he had murdered unarmed Afghan prisoners and civilians, and bullied fellow soldiers.

These press reports were particularly galling to a man who had been awarded the Medal of Gallantry, the Victoria Cross, and a Commendation for Distinguished Service.

He sued Nine Entertainment (then referred to as Fairfax Publications) and their investigative journalists ^[1].

Submissions in the trial ended in July 2022 after 110 days of evidence. In the result, Justice Besanko determined that Nine Entertainment had not defamed Roberts-Smith ^[2]. The judge found the reporting was capable of being deemed defamatory, but that most of the imputations were substantially true. That being the case, he upheld the defence of truth and contextual truth not only in relation to the allegations of murder, but also with respect to imputations regarding Roberts-Smith’s character.

Roberts-Smith appealed to the full Federal Court. The appeal hearing ran for ten days in February 2024. Today, 15 months later, the appeal court consisting of Justices Nye Perram, Anna Katzmann and Geoffrey Kennett has dismissed his appeal.

Because the case had national security implications, there is in place for a short period, a non-publication order over what is referred to as the “open court” reasons for judgement. The judges ordered that their reasons will not be available “until either the Commonwealth notifies the court and the parties that it has no objection to publication […] or 4pm on May 20, 2025, whichever is earlier”.

In recent times it has become the practice of the Federal Court, in cases of public interest, to provide a summary to accompany the orders, available immediately. The summary provided to the public is not a complete statement of the conclusions reached. The only authoritative statement of the court’s reasons is that contained in the judgement that will be made available in due course.

There are, however, a couple of matters that bear noting now.

The first is that the appeal judges were unanimous in their support for the conclusions of the trial judge. In 2023, Justice Besanko made numerous adverse findings about the credibility of the evidence of Roberts-Smith, and the evidence of the witnesses whom he called on his behalf. Roberts-Smith sought to challenge all of those adverse findings and to point out errors in the trial judge’s findings. But it was to no avail.

The appeal court’s summary ^[3] states

Having carefully considered all these matters, we are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men and to the extent that we have discerned error in the reasons of the primary judge, the errors were inconsequential. Accordingly, the appeal must be dismissed with costs.

There is another, secondary matter arising from a side issue to the appeal, which bears mentioning here. When the draft judgement of the appeal court was close to completion, Roberts-Smith’s lawyers filed an application to lodge an amended notice of appeal. It referred to an audio recording that was sent anonymously to them in March this year. The recording purported to be a portion of a telephone conversation ^[4] between investigative journalist Nick McKenzie and a witness whose identity is the subject of suppression orders.

In this call, McKenzie was alleged to have admitted to using Roberts-Smith’s ex-wife as a source regarding her former husband’s legal strategy. Roberts-Smith’s lawyers said had they known of McKenzie’s alleged journalistic misconduct, they would have structured their arguments differently during the defamation trial.

On the Federal Court website today ^[5], two judgements have been released in relation to the so-called McKenzie tape. The first gave the Roberts-Smith team a glimmer of hope. The appeal court judges determined that the application for them to hear the recording was, in fact, appropriate, and that the content was therefore admissible evidence in consideration of a new claim of miscarriage of justice.

However, the second judgement extinguished any hope of this occurring. The appeal court judges concluded there was, in fact, no miscarriage of justice in not allowing the recording to be considered by a court.

It’s been seven years since the allegations regarding Ben Roberts-Smith’s involvement in war crimes first surfaced. Roberts-Smith has indicated his intention to appeal to the High Court. This case may yet still have a way to run.