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Ben Roberts-Smith loses major defamation case
In dismissing one of Australia’s largest defamation proceedings, a Federal Court judge found former soldier Ben Roberts-Smith murdered unarmed civilians in Afghanistan more than a decade ago.
Naomi Neilson
Justice Anthony Besanko found The Age, The Sydney Morning Herald, and the Canberra Times successfully established the substantial truth in six articles that Roberts-Smith was involved in unlawfully killing unarmed Afghanistan men during his service.
Dentons managing associate Sylvia Alcarraz said the case was always going to have “wide-reaching consequences on the media landscape, regardless of which way the decision went”.
“Today was an important win that enables media and journalists to report fearlessly, yet truthfully and responsibly on matters that are in the public interest, even when they raise the most serious of allegations. It was the right decision,” Ms Alcarraz said.
The June and August 2018 articles specifically alleged Roberts-Smith, a former Special Air Service Regiment corporal, “murdered or was complicit in and responsible for the murder of Afghan males who were under control or containment”.
This included an incident in which he kicked an Afghan citizen off a cliff and procured the soldiers in his command to shoot him.
The articles also alleged Roberts-Smith committed murder by machine-gunning a man in Afghanistan with a prosthetic leg and, in a “callous and inhumane” move, took the leg back to Australia and encouraged soldiers to use it as a “novelty beer drinking vessel”.
The news sites had also alleged Roberts-Smith assaulted a woman, but this was not proven. However, Justice Besanko found it did not further harm his reputation and should also be dismissed.
The newspapers relied on the defence of truth and insisted Roberts-Smith unlawfully executed men over five days in 2009 and 2012.
Roberts-Smith denied this and claimed five of the killings had happened lawfully while in battle and the sixth did not occur at all.
Justice Besanko will publish reasons early next week after he granted the Commonwealth time to review the notes to ensure all the necessary redactions are made to protect national security.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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