War veteran Ben Roberts-Smith is entitled to the presumption of innocence but was effectively convicted of war crimes by three newspapers without a criminal trial, his barrister has told the Federal Court at the close of his defamation case.
The decorated former soldier’s defamation trial against The Age, The Sydney Morning Herald and The Canberra Times resumed on Monday for closing submissions from the parties after a six-week break. The evidence in the case concluded in June after 98 days and an estimated $25 million in legal costs.
Arthur Moses, SC, acting for Roberts-Smith, told the Federal Court in Sydney on Monday that the case had been dubbed “the trial of the century”, a “proxy war crimes trial” and an “attack on the freedom of the press”, but it was “none of these”. He said the newspapers had persisted in a defamatory campaign against Roberts-Smith and used the processes of the court to make baseless allegations of murder against his client.
But Nicholas Owens, SC, acting for the newspapers, said the judge presiding over the trial, Justice Anthony Besanko, was “confronted with a dilemma, which is: someone is lying”.
Owens told the court he stood by his submission at the start of the trial that the differences between the accounts given by the newspapers’ witnesses and Roberts-Smith’s witnesses “could not be explained as honest or innocent or otherwise unwitting differences in perception or recollection”.
He said “the honesty of all these witnesses is fundamental” and if Besanko accepted their evidence in relation to a specific allegation, the flow-on “effect on Mr Roberts-Smith’s credibility ... will be devastating”.
While Roberts-Smith had submitted that most of the newspapers’ witnesses were mistaken about their recollections rather than being deliberately dishonest, Owens argued it was implausible that “multiple witnesses would innocently come to have the same wrong recollection”.
But Moses said the allegations made against Roberts-Smith were “based on rumour, hearsay and contradictory accounts” from former Special Air Service colleagues who were either “jealous” or “obsessed”.
He said the former SAS corporal – who was awarded the Victoria Cross, Australia’s highest military honour, in 2011 – was the country’s most decorated living Australian soldier before his reputation was destroyed by the newspapers.
“He has, in essence, been labelled by the respondents as a war criminal [and] convicted by the respondents based on allegations which they have propounded,” Moses said.
He said Roberts-Smith was, “like any citizen of Australia ... entitled to the presumption of innocence, which is the cornerstone of our justice system”.
“The respondents have asserted in their truth defence that Mr Roberts-Smith either committed murder or was complicit in the murder of six persons and engaged in violent assaults while serving in the Australian Defence Force in Afghanistan in contravention of ... the Geneva Conventions,” Moses said.
Roberts-Smith is suing the three mastheads for defamation over a series of articles in 2018 that he says portray him as a war criminal who was complicit in the unlawful killing of unarmed Afghan prisoners. Under the rules of engagement that bound the SAS, prisoners could not be killed.
Roberts-Smith denies all wrongdoing and has said any killings happened lawfully in the heat of battle.
The media outlets are seeking to rely on a defence of truth and have alleged in a written defence that Roberts-Smith was involved in six unlawful killings in Afghanistan between 2009 and 2012.
Moses noted that one of the allegations, allegedly involving a soldier dubbed Person 66, was “not the subject of any written submissions” by the newspapers after Person 66 objected to giving evidence in court on the grounds of self-incrimination.
“It is not known what the respondents want the court to do with that allegation, as it remains on the record as part of the issues to be determined,” Moses said.
Matthew Richardson, SC, who is also acting for Roberts-Smith, said this allegation ought to have been withdrawn when Person 66 did not give evidence in March.
Roberts-Smith is also suing for defamation over allegations of bullying of fellow SAS soldiers, and an allegation that he committed an act of domestic violence against a former lover in March 2018.
Moses said the bullying and domestic violence allegations were also very grave, and the domestic violence allegation caused “significant hurt to Mr Roberts-Smith, who is the father of two daughters”.
The defamation case was not an attack on the ability of a free press to engage in investigative journalism, he said, but Roberts-Smith was seeking vindication of his reputation. Moses said it was accepted without question that journalists were entitled to publish stories in the public interest.
Damages for non-economic loss in defamation cases are capped at $443,000, a figure that is increased annually.
Richardson argued “up to three times” the capped figure could be awarded in this case because there were three separate proceedings against the mastheads.
He said Roberts-Smith was also seeking a “substantial award of aggravated damages”, plus special damages for financial loss.
Richardson told the court that Roberts-Smith’s public speaking business made over half a million dollars in 2015, $374,000 in the year ended 2016, $168,000 in 2017 and $300,000 in the 2018 financial year, “the last financial year that really happened before the articles”.
There was a contest between the parties about whether the business was in decline before the articles, Richardson said, but he submitted “the court could be confident that the business was stabilising, [and] that the sorts of figures that were generated in the year 2018 might have been expected to continue”.
It might take a “substantial number of years post a vindicating judgment” for the business to recover, Richardson said.
Roberts-Smith has also told the court he missed out on a lucrative partnership at consulting firm PwC after the first tranche of articles, and Richardson said it would have paid more than his current position as general manager of Channel Seven Queensland. Roberts-Smith has taken leave from that role during the trial.
The trial continues.
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