Ben Roberts-Smith's Defamation Battle Concludes: High Court Denies Final Appeal
The protracted and highly public legal saga of Australia's most decorated living soldier, Ben Roberts-Smith, has reached its definitive end. The High Court of Australia has refused his final bid to overturn a landmark defamation ruling that found he had been defamed by articles alleging he murdered unarmed Afghan civilians.
This decision by the nation's highest court marks the culmination of a grueling, multi-year legal battle that has captivated Australia and shone an uncomfortable spotlight on the conduct of its special forces in Afghanistan. Roberts-Smith, a Victoria Cross recipient, had sought to appeal a Federal Court ruling from June 2023, which upheld a previous Federal Court decision that found the newspapers had proven their allegations on the balance of probabilities.
The High Court's Refusal: A Final Word
The High Court, in a brief statement, confirmed it would not grant Roberts-Smith special leave to appeal. This means the previous Federal Court judgments stand. The implications are significant, not only for Roberts-Smith's reputation and career but also for the broader narrative surrounding Australia's involvement in the Afghanistan conflict.
Roberts-Smith's legal team had argued that the trial judge, Justice Anthony Besanko, made errors in his assessment of the evidence. However, the Federal Court judges, in their appeal ruling, found that Justice Besanko had correctly applied the law and was entitled to reach the conclusions he did. The High Court's refusal to hear the appeal effectively seals the fate of this particular legal challenge.
A Landmark Defamation Case
The defamation proceedings were initiated by Roberts-Smith against The Age, The Sydney Morning Herald, and The Canberra Times over a series of articles published in 2018. These articles detailed allegations of war crimes, including murder, committed by Australian special forces soldiers in Afghanistan, with Roberts-Smith named as a central figure in several alleged incidents.
The newspapers mounted a truth defence, meaning they had to prove the allegations were substantially true. This placed a heavy burden on the media outlets, requiring them to present compelling evidence to substantiate the claims of unlawful killings. The trial, which lasted over 100 days, heard testimony from dozens of witnesses, including former comrades of Roberts-Smith and Afghan villagers.
In June 2023, the Federal Court found that the newspapers had successfully proven the truth of several allegations, including that Roberts-Smith was involved in the murder of four Afghan civilians. The court ruled that the newspapers had established on the balance of probabilities that Roberts-Smith had engaged in unlawful killings and had also participated in bullying and intimidation.
Roberts-Smith's legal team had argued that the trial judge had made errors in assessing the credibility of witnesses and in his interpretation of certain evidence. They sought to overturn the ruling that he had defamed Mr. Roberts-Smith, arguing that the newspapers had failed to prove their defence of truth.
The Cost of the Legal Battle
Beyond the reputational damage, the legal battle has come at a considerable financial cost. Roberts-Smith was ordered to pay the newspapers' legal costs, estimated to be in the millions of dollars, as he lost on the defamation claims. While the newspapers were successful in their defence, they also incurred significant expenses to defend the case.
The outcome of this case has broader implications for press freedom in Australia. The ability of media organisations to hold powerful individuals and institutions accountable, even when facing formidable legal opposition, is a cornerstone of a healthy democracy. This ruling will likely be seen as a victory for investigative journalism, demonstrating that it is possible to defend truth-based reporting against defamation claims.
What Happens Now?
With the High Court's refusal, the Federal Court's decision stands. Ben Roberts-Smith has lost his final legal avenue to overturn the defamation ruling. The allegations of war crimes, though not a criminal conviction, have been upheld in a civil court.
The Australian military has conducted its own investigations into alleged war crimes in Afghanistan, with the Inspector-General of the Australian Defence Force's Brereton Report recommending the prosecution of 19 individuals for alleged breaches of the laws of armed conflict. While this defamation case was separate from those criminal proceedings, it has undoubtedly added to the scrutiny of the actions of Australian special forces.
The protracted nature of this case raises questions about the effectiveness of the legal system in handling complex defamation matters, particularly those involving national security and military conduct. It also highlights the immense challenges faced by both plaintiffs and defendants in such high-stakes litigation.
For Ben Roberts-Smith, the end of this legal chapter brings a stark reckoning. His quest to clear his name through the courts has ultimately failed, leaving him with a tarnished reputation and the weight of the Federal Court's findings. The nation will continue to grapple with the implications of these allegations and the broader questions they raise about Australia's military past.
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