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Ben Roberts-Smith’s fate rests in Judge Anthony Besanko’s hands

He provides, “After all, in the event that they do succeed on fact, it is going to function as a quasi-investigation into struggle crimes as properly, which can also be important in and of itself”.

Few would want themselves within the footwear of Besanko, who now has to sift by a mountain of proof, elicited from greater than 40 witnesses delivered over 110 days, to resolve whether or not Roberts-Smith will perpetually be branded a person who murdered Afghan prisoners, bullied former comrades and struck his former lover.

Journalists Chris Masters and Nick McKenzie.

Journalists Chris Masters and Nick McKenzie. Credit score:9

9’s newspapers, The Sydney Morning Herald and The Age, have taken the calculated threat of mounting a fact defence. Meaning their authorized staff, headed by Nicholas Owens, SC, needed to persuade the decide that the struggle crimes and different wrongdoing alleged by star investigative reporters Nick McKenzie and Chris Masters had been, on the stability of chances, true.

However Roberts-Smith’s authorized staff, headed by Arthur Moses, SC, and Matthew Richardson, SC, have urged the decide to be rigorous in making use of what is named the Briginshaw normal.


That is an evidentiary precept derived from a 1938 divorce swimsuit, which holds that even in a civil swimsuit like this – with a decrease normal of proof than in a felony case – the court docket should take specific care in weighing the strengths and weaknesses of the proof if there are grave penalties for these concerned.

Moses ran exhausting on this in his summing up, saying the felony allegations being made by the media retailers fell “on the very highest finish of goal seriousness … [and] strike on the very coronary heart of Mr Roberts-Smith’s morality and humanity”.

Underscoring this level, Moses added that “assassin” was “ordinarily a label … reserved for convicted criminals flowing from a felony continuing”.

He additionally identified that if the decide accepted all of the proof from the media retailers as to the 5 illegal killings of unarmed prisoners that 9 alleges, this is able to implicate different troopers –significantly the SAS witnesses often known as Particular person 4 and Particular person 11.

Particular person 4 is claimed to have shot a prisoner at Roberts-Smith’s command at a village compound often known as Whiskey 108 in April 2009, whereas Particular person 11 is alleged to have conspired with the Victoria Cross recipient to execute an unarmed man, Ali Jan, on the village of Darwan in late 2012.

Moses advised the decide that along with branding Roberts-Smith a assassin, “Your Honour is [effectively] being requested to make a discovering that Particular person 4 is a assassin. Your Honour is being requested to make a discovering that Particular person 11 is a assassin”. (Particular person 11 has denied the alleged execution, whereas Particular person 4 declined to provide proof on the grounds of self-incrimination.)

Exhibit in Ben Roberts-Smith defamation case, showing the village of Darwan. The “X” marked with “B” and an arrow is said to be the cliff from which a villager was allegedly kicked by Roberts-Smith. He denies the allegation.

Exhibit in Ben Roberts-Smith defamation case, displaying the village of Darwan. The “X” marked with “B” and an arrow is claimed to be the cliff from which a villager was allegedly kicked by Roberts-Smith. He denies the allegation.

9’s authorized staff, nonetheless, believes the struggle crimes case it has painstakingly constructed over the previous 12 months is powerful sufficient to face up to the Briginshaw take a look at. “Nothing left on the desk,” is how one participant summed up the temper on the media retailers’ facet this week.

College of Sydney professor David Rolph, a defamation regulation skilled, mentioned the regulation has “lengthy recognised that in an effort to be glad {that a} reality is confirmed on the stability of chances it’s worthwhile to bear in mind the seriousness of the allegation”.

“As a result of the allegations are critical and hotly contested, it might be troublesome for the publishers to ascertain fact – however not inconceivable.”

Moses has accused McKenzie and Masters of leaping like “salmon [onto] a hook” as troopers inside the SAS, jealous of Roberts-Smith’s navy honours, peddled supposed lies and gossip to the 2 reporters.

However Owens, totally rejecting this, emphasised that a lot of 9’s important witnesses had by no means had any contact with the journalists.

Certainly, among the key witnesses summoned by 9 – significantly SAS troopers who had been recognized as Individuals 24, 40, 41, 42 and 43 – had been referred to as by the mastheads’ legal professionals solely after they’d received entry to a important Defence division doc often known as a Probably Affected Individuals (PAP) discover.

The PAP had been confidentially issued to Roberts-Smith by the Inspector-Common of the Defence Drive in reference to a separate struggle crimes probe being carried out by the navy.

Ben Roberts-Smith’s legal representation Arthur Moses, SC, and Nicholas Owens, SC, representing Nine.

Ben Roberts-Smith’s authorized illustration Arthur Moses, SC, and Nicholas Owens, SC, representing 9. Credit score:Peter Rae/Edwina Pickles

The gaining of entry to the PAP – even in its extremely redacted kind – was a serious turning level for the newspapers within the case.

The hearings have taken a heavy toll on among the troopers who gave proof, as demonstrated by the often distressed state of some within the witness field. Moses branded two of 9’s witnesses as liars and perjurers, and says others are mistaken due to psychological well being circumstances which distorted their reminiscence.

However Owens says the media retailers’ witnesses are sincere and dependable, and in contrast, has accused Roberts-Smith’s witnesses of collusion and cover-up.

Unpicking what occurred at Whiskey 108 is especially complicated due to the massive variety of SAS or former SAS witnesses who had been concerned within the operation that day. However basically the media retailers’ case rests on one core proposition: that two Afghan males got here out of a hidden tunnel there. 9 says the 2 males, who had been taken prisoner, had been quickly afterwards executed unlawfully, one by Roberts-Smith and the second at his instigation with a narrative concocted to cowl the deaths.


Roberts-Smith and his allies denied any males got here out of a tunnel in any respect – Moses branding the 9 case a “mishmash”.

However Owens mentioned whereas there could have been “variations of element” amongst a few of his SAS witnesses, there was “no believable suggestion about how they could all have, because it had been, come to have a collective hallucination in broadly the identical phrases about individuals popping out of the tunnel”.

One other evidentiary tussle turned on whether or not the media retailers ought to have summoned an Afghan soldier often known as Particular person 12 to provide proof. Particular person 12 was a senior Afghan officer who is claimed to have ordered the execution of one other unarmed detainee at Chenartu, in Afghanistan, in late 2012, beneath stress from Roberts-Smith.


Citing a precedent in a case often known as Jones v Dunkel, Moses mentioned Besanko ought to draw an adversarial inference towards 9 due to its failure to name Particular person 12. However Owens mentioned the officer might equally have been referred to as by Roberts-Smith’s facet.

9 is assured it has closed its case in a powerful place, due to the extra proof turned up by months of affected person sleuthing.

Ought to it fail, Bosland says a report payout might movement if the decide grants aggravated damages – imposed the place a court docket finds “improper or unjustifiable” conduct by the respondent.

The home violence allegation has a separate defamatory “sting”, Roberts-Smith’s legal professionals say. They’ve argued that the conduct of his ex-lover, Person 17, was total inconsistent together with his having struck her. However 9 says she is truthful, and emphasised the ability imbalance between the pair.

Whereas the Defamation Act was not too long ago reformed throughout a lot of the nation, the Roberts-Smith litigation is being fought beneath older legal guidelines that imposed fewer restrictions on the scale of damages payouts. Beneath these provisions, a cap on basic damages for non-economic loss – presently fastened at $443,000 – ceased to use if aggravated damages had been additionally awarded.

Roberts-Smith can also be claiming particular damages, to cowl the profession alternatives he mentioned evaporated on account of the case.(Actor Geoffrey Rush holds the current record for the highest defamation payout to a single plaintiff in Australia at $2.9 million).

The long-overdue adjustments to defamation regulation will present investigative journalists with a brand new public curiosity defence in future, if publishers can set up they “fairly believed” publication of fabric was within the public curiosity. The defence stays untested.

However in dealing with off towards the onetime struggle hero beneath the older regulation, 9 is having to leap a excessive bar.

The subsequent few months shall be a protracted and agonising wait, for either side.

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