Dismissed defamation case to be appealed

Matthew Howe  21-07-2023


Ben Roberts-Smith is set to appeal the outcome of his previous defamation case that was dismissed by federal court in Australia.

His previous case, consisting of accusations of war crimes committed by Roberts-Smith in three Australian newspapers relating to events when he was a soldier in Afghanistan, was lost in June 2023. This was after more than 100 days of evidence, with the courts finding on the balance of probabilities that what the newspapers said was true. Roberts-Smith was found to be responsible for the murders of four Afghans, although no criminal charges have been brought against him, where a higher burden of proof must be met.

Roberts-Smith tried to sue the three newspapers The Age, The Sydney Morning Herald, and The Canberra Times  for libel after they published a series of articles in 2018 that alleged crimes including murdering civilians in the village of Darwan and ordering other soldiers to do so as well between 2009 and 2012.

Roberts-Smith argued the papers tried to portray him as a criminal who had “disgraced” his country and its military and went on to say that he would not be “making any apologies” to those affected by any of the alleged crimes. However, in relation to the killing of an Afghan father of 6 in 2012 by ordering a fellow soldier to push him over a cliff and shoot him, the judge ruled that Roberts-Smith “was conscious that the killing of Ali Jan was unlawful”.

Other accusations that Roberts-Smith faced included ordering the killing of an elderly unarmed prisoner and the murder of a disabled man. The newspapers also domestic violence against a woman he was romantically involved with, however these were not proven on balance of probabilities.

Roberts-Smith, who had previously been awarded the Victoria Cross, spent the days leading up to his trial in an Indonesian resort in Bali and was not present for the civil court ruling. However he said after the judgment that he was “devastated…it’s a terrible outcome and it’s the incorrect outcome”. 

Roberts-Smith followed such statements with allegations that the judge ‘cherrypicked’ evidence in his judgment. The appeal argued that the judge had accepted the testimonies of multiple soldiers about two men found in a tunnel during the "Whiskey 108 mission", who Roberts-Smith was accused of murdering. He said the judge “did not take into account the possibility that the witnesses’ memory had become distorted or polluted over time because of intervening events”.

Despite this allegation, there were many other pieces of evidence that helped the judge, such as testimonies from three men who were in the village at the time of the murder. Again, Roberts-Smith argued that this evidence was incorrect and asserted that there was “material inconsistency” within such accounts.

The appeal also asserts that a judicial error was made regarding the claim that Roberts-Smith had ordered a member of the Wakunish to murder a prisoner in the village of Chinartu. The appeal suggests that the judge “engaged in speculation” over hidden weaponry that was heard to be the motivation for the killing of the prisoner.

The federal government’s Office of Special Investigator continues to investigate such allegations including the three murders alleged by the local media to have involved Roberts-Smith alongside Australian Federal Police. This being just one of the 40 matters that are being jointly investigated between the two public bodies.

With events such as the charging of Oliver Schulz, the first Australian defence force member to be charged with the War crime of murder that took place earlier this year, many questions have been arising surrounding the possibility of the accusations facing Roberts-Smith and the possibility of a criminal trial.

The date is yet to be set for the appeal of Roberts-Smith’s defamation claim. If he is successful, there is every possibility that he could be awarded a substantial sum in damages, as the Australian courts are far more generous in this regard than the English courts. 

Although the final judgment in this matter won't bind the English courts, the judgment will be considered carefully by English defamation lawyers who regularly bring claims against newspapers. 

If you have been defamed by a newspaper, if a newspaper has printed a story which is untrue which has harmed your reputation, you could be entitled to compensation. Contact us today to find out how we can help. 

Article Credit: Emily Clemence

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