Not with a bang however a whimper. With a easy “this court docket is adjourned”, Ben Roberts-Smith’s long-running defamation trial was, abruptly, quietly ended.
For a trial steeped in drama and in pathos, that has seen greater than 100 days of extraordinary allegation and beautiful proof, it was a prosaic conclusion.
Earlier than a bar desk groaning with post-nominals, 42 witnesses have been referred to as, most underneath power of subpoena, most anonymised for nationwide safety causes.
They got here to the quiet formality of Sydney’s federal court docket constructing from all around the world: they testified from Afghanistan, have been flown in from the US, or subpoenaed from distant navy barracks. Some have been sitting ministers of the crown, others serving senior officers within the SAS.
The trial generated tens of hundreds of pages of transcripts, and tons of of displays, held amid unprecedented safety.
Sydney’s federal court docket constructing was reworked to accommodate anonymised navy witnesses – total flooring have been sealed off, home windows blacked out to stop spying from outdoors, and telephones and smartwatches banned from closed court docket classes. Some witnesses have been introduced into the constructing by means of secret entrances so they may not be seen – together with by one another – and gave their proof screened from public view.
The trial shone a obvious, typically unflattering mild, on the normally arcane world of Australia’s Particular Air Service, revealing a troubled establishment, factionalised and fractious, and deeply riven by internecine preventing over decorations and medals: in thrall, on some proof, to a “warrior tradition” steeped in violence.
And it laid naked the brutal actuality of Australia’s decades-long struggle in Afghanistan: the strategic drift of the mission, the compromises and complexities of the battle in opposition to an elusive, ill-defined enemy, and the irredeemable toll taken on the handful of troopers despatched time and time once more to the sharp finish of a grimy, harmful struggle.
The trial heard extraordinary testimony: allegations that a handcuffed prisoner was kicked off a cliff and shot useless; of a quavering teenager shot within the head described as “probably the most stunning factor I’ve ever seen”; of laptops being burnt in backyards; of threatening nameless letters; of girls being surveilled and filmed in intimate moments; of clandestine proof being buried in youngsters’s lunchboxes.
Dramatically, three SAS troopers – being interrogated about separate missions – refused in court docket to reply questions on what they did in Afghanistan, objecting on the grounds that any truthful reply they gave could be self-incriminatory. Every was accused of homicide: every was permitted by the Justice Anthony Besanko to not reply.
“This trial, which has lasted over 100 days, has been referred to as an incredible many issues,” Roberts-Smith’s barrister Arthur Moses SC advised the court docket in his closing submissions.
“The trial of the century, a proxy struggle crimes trial, and an assault on the liberty of the press. It's none of those. It's a case which has been introduced as a result of the respondents selected to defame Mr Roberts-Smith.
“This has been a case about how Mr Roberts-Smith, probably the most adorned Australian soldier, and a person with a excessive fame for braveness, ability and decency in soldiering, had that fame destroyed by the respondents.”
Roberts-Smith is suing for defamation the Age, the Sydney Morning Herald, and the Canberra Instances over reviews he alleges wrongly painting him as a struggle felony and assassin.
The newspapers are defending their reporting as true, together with allegations Roberts-Smith was complicit in six murders whereas deployed to Afghanistan, was a bully, and a perpetrator of home violence. Roberts-Smith denies any wrongdoing.
Over many months throughout trial, the newspapers laid out, in painstaking element, their allegations in opposition to Roberts-Smith.
Their lead barrister, Nicholas Owens SC, advised the court docket that, for all its chaos, legal guidelines utilized to struggle. Troopers weren't free to kill indiscriminately.
“Not a single one of many murders we allege … concerned choices that have been made within the warmth of battle … the ‘fog of struggle’”.
The allegations of homicide earlier than the court docket have been the deaths of civilians or insurgents who had been positioned hors de fight, Owens stated.
“One matter is completely and unambiguously clear … as soon as an individual has been positioned underneath management, regardless of that he will be the most brutal, vile member of the Taliban possible, an Australian soldier can't kill him. To take action is homicide.”
By proxy, the trial has supplied a glimpse into the unremitting violence and uncertainty of Australia’s struggle in Afghanistan, with a tiny cohort of troopers requested to return many times to a battle that more and more felt purposeless.
Former troopers, some damaged by psychological anguish and post-traumatic stress, testified they'd served as much as 12 deployments.
They advised the court docket of seeing comrades die, and being despatched to “hit” rebel redoubts time and again.
They sought an enemy who melted into the farms and the mountains throughout winter, solely to re-emerge every spring preventing season.
One soldier advised the court docket he resented being subpoenaed to offer proof in opposition to his former comrade.
Having testified he witnessed Roberts-Smith execute a disabled, unarmed prisoner, he stated: “I nonetheless don’t agree with the very fact BRS [Roberts-Smith] is right here, underneath excessive duress, for killing dangerous dudes we went there to kill”.
Roberts-Smith has rejected all allegations of wrongdoing. His legal professionals advised the court docket the Victoria Cross he gained for spectacular bravery was not an honour he sought, however, in the end, a burden “thrust upon him”.
“It put a goal on my again,” the person himself advised the court docket.
His accusers have been fabulists and fantasists, Roberts-Smith’s legal professionals stated, failed troopers embittered by their very own “cowardice”, and a “corrosive jealousy” in direction of their comrade’s successes.
This case has attracted unprecedented public consideration – there are few in Australia with out an opinion on Ben Roberts-Smith. However this trial in the end solutions to a constituency of 1.
Justice Anthony Besanko, an skilled federal court docket choose who has relocated from Adelaide to Sydney for this trial, is the only arbiter who will determine, on a steadiness of chances, which model of occasions to consider.
Authoritative – and sometimes droll – he has been in any other case inscrutable from the bench, hardly ever interjecting, permitting broad strains of questioning, and quietly marshalling the plenty of proof unfold earlier than him.
He has now adjourned the court docket, and he'll retire to put in writing some of the consequential judgments the nation has heard in a few years.
A wider reckoning
However Roberts-Smith’s defamation trial doesn't exist inside a vacuum, and the broader context is probably much more momentous.
The Australian Federal Police and the Workplace of the Particular Investigator – particularly established to research allegations of struggle crimes in opposition to Australian troopers in Afghanistan – proceed their investigations, with the very actual potential that felony prices may very well be laid in opposition to a number of Australian troopers arising from their actions in Afghanistan.
Interim briefs of proof have been despatched by police to the commonwealth director of public prosecution.
These investigations arose after the inspector normal of the Australian Defence Pressure, Maj Gen Paul Brereton, a choose of the New South Wales court docket of enchantment, started an investigation in 2016 into “rumours of great misconduct by Australia’s particular forces in Afghanistan”.
Launched in 2020, Brereton’s report makes sobering studying. It discovered 25 Australian troopers have been credibly alleged to have murdered 39 Afghan civilians, in some instances executing detained non-combatants to “blood” junior troopers earlier than inventing cowl tales and planting weapons on corpses.
Not one of the killings may very well be attributed to the “fog of struggle”, Brereton discovered, describing the actions as a “disgraceful and a profound betrayal” of the ADF.
In a paper written for the James Prepare dinner College Legislation Evaluation in 2021, Brereton argued the crucial for nations to completely examine – and if obligatory prosecute – struggle crimes dedicated by their residents.
“Basically, legal guidelines are ineffective if they aren't enforced, and a regulation which isn't enforced quickly turns into a useless letter.”
And struggle crimes differ from different crimes, he argued, “in that they have an effect on not solely the people involved, but in addition the nation’s fame and standing”.
“Conflict crimes undermine the nationwide intent in prosecuting a struggle … a nation’s preparedness to research struggle crimes by its personal is a mark of a mature civilisation, and a technique during which it could actually treatment the stain on its fame occasioned by the fee of against the law in its title by one among its service personnel.”
Nationwide struggle hero an alleged assassin
However the defamation trial carries penalties of its personal.
Roberts-Smith as soon as loved some of the extraordinary reputations of any individual in Australia.
The recipient of the nation’s highest navy honour, the Victoria Cross, he was lauded off the battlefield too. Chairman of the Australia Day Council and Father of the Yr, he got here to embody the easiest of Australia’s navy historical past, and to exemplify the rightness of Australia’s mission in Afghanistan, striving to carry peace to a land that had barely recognized it for generations.
The mission to Afghanistan was a failure: that land is as soon as once more benighted by the rule of the vicious Taliban. And Roberts-Smith stands accused of probably the most grave crimes there.
Roberts-Smith’s barrister, Arthur Moses advised the court docket in his closing submissions the allegations have been “of probably the most severe nature … [and] strike on the very coronary heart of Mr Roberts-Smith’s morality and humanity”.
A court docket discovering the allegations have been true would have “life-changing”, irreparable penalties for him, Moses stated.
“It could paint Mr Roberts-Smith as a assassin … a violent individual and a home violence abuser.
“It could indelibly and completely tarnish his standing and good title.”
Moses stated the damage to Roberts-Smith’s fame by the newspaper reviews had been excessive: a consequence of the gravity of the allegations, compounded by his beforehand unimpeachable public profile.
“This case is just not about cash, it’s concerning the vindication of the fame of Mr Roberts-Smith.”
Courtroom prices and penalties
However, on one degree, this case is completely concerning the cash.
The court docket has heard Roberts-Smith’s as soon as profitable public talking enterprise – RS Group – has been all however expired with the publication of the allegations. His company profession has stalled.
To run this defamation motion, he has borrowed almost $2m from his employer and benefactor, Channel Seven chairman Kerry Stokes.
Nonetheless, the price of the trial has spiralled far past these figures – conservative estimates put the full price at past $25m – to be borne by the loser of this trial.
Any damages awarded may run to hundreds of thousands past.
The involvement of Stokes has drawn in wider establishments. Two of the newspapers being sued, the Age and the Sydney Morning Herald, at the moment are owned by 9 Leisure, the important thing competitor to Stokes’s Seven West community.
Stokes, a West Australian, is an avowed navy buff and has shut hyperlinks to the Perth-based SAS. Roberts-Smith stays his worker, and Seven was additionally paying the authorized charges of a number of of his trial witnesses (till this was revealed in court docket and the debt was shifted to Stokes’s non-public firm).
If Roberts-Smith doesn't win, and can't repay the mortgage, he'll forfeit his medals.
Stokes has stated, in that case, the medals will probably be donated to the Australian Conflict Memorial in Canberra, of which he was longstanding chairman.
The stakes are existential on the opposite facet too. The case is important for the newspapers’ publishers, and Australian journalism extra broadly. Regardless of the allegations from Roberts-Smith’s legal professionals, these tales weren't feckless sensationalism: the proof revealed earlier than the court docket has proven the painstaking work of years of cautious investigation, leads patiently adopted and data double- and triple-sourced.
A win for the newspapers could be seen as a victory for public curiosity journalism, for the liberty of speech and of the press, and for the Australian individuals’s proper to know what's being performed in its title and with its cash.
A loss may injury journalism in Australia: information organisations’ enthusiasm for brave public curiosity investigations could be rudely diminished.
A judgment is just not anticipated for a number of months.
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