Ben Roberts-Smith

2022 - 6 - 3

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Image courtesy of "The Age"

The risky business of defamation (The Age)

We worry because investigative journalism, exposing secret bad behaviour, necessarily leads to damage to the reputation of the wrongdoer. We say, of course, ...

Roberts-Smith sued, and the legal processes of subpoena and court order flushed out a number of other murder allegations and stacks of evidence of alleged wrongdoing that would otherwise have remained hidden from the public. Rebekah Vardy, the WAG (wife and girlfriend) of an English footballer, sued her WAG frenemy Coleen Rooney after Rooney suggested (on Instagram, of course) that Vardy had been leaking stories about her to the media. He’ll pay their costs and wear the humiliation and career damage of his sexualised harassment of almost a dozen women being pored over in public. It’s fair to say the case was not the triumphal rehabilitation of McLachlan’s reputation he had hoped for. His was the second of two major #metoo defamation cases and the first did not go well for the publisher. Geoffrey Rush successfully sued over a poorly researched article in Sydney’s Daily Telegraph. The newspaper paid out almost $3 million, despite what turned out to be quite compelling testimony from witness Eryn Jean Norvill that she was sexually harassed, and the words, which the Federal Court judge did not allow to be heard in court, of another actress, Yael Stone. In these cases, it’s simply too onerous to prove to the satisfaction of a court, several years after the article was written, that the imputations capable of being drawn from our words are in fact true. So sometimes the most prudent course is to simply apologise, pay up and walk away, even if we know we got the story right. We worry because investigative journalism, exposing secret bad behaviour, necessarily leads to damage to the reputation of the wrongdoer. Journalists and editors, not to mention media companies, spend much of their professional lives in mortal fear of a defamation writ landing on their desk. Defamation is all about reputation and damage caused to it, but a number of recent, high-profile cases have turned that concept on its head. This week the evidence concluded in an absolute monster of a defamation case.

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Image courtesy of "ABC News"

Final Ben Roberts-Smith witness tells court he doesn't know how ... (ABC News)

The final witness in the long-running Ben Roberts-Smith defamation case, a senior SAS member, says he never had any personal knowledge of how two Afghan men ...

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Image courtesy of "SBS"

Final witness says he is unable to say whether Ben Roberts-Smith ... (SBS)

A senior SAS soldier says he has no personal knowledge of the alleged murders of two Afghan men in a Taliban compound.

Nicholas Owens SC on behalf of the newspapers asked. The mastheads allege that Person Four was ordered to execute one of the two prisoners in order to "blood the rookie" to get his first kill in action, while Mr Roberts-Smith either made the command or stood by the murder. Arthur Moses SC representing Mr Roberts-Smith confirmed on Thursday that Person 81 was the final witness to be called by his client. And Person 81 could not say one way or another whether the man with a prosthetic leg was executed by Mr Roberts-Smith, as he said he relied on his patrol commanders to inform him of the circumstances surrounding engagements. Person 81 confirmed to the court that he had no personal knowledge of how those two men came to be killed. The court heard that the senior and still serving elite soldier dubbed Person 81 was captain at the time, and after bombs had destroyed large sections of the structure he gave the orders to clear it.

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Image courtesy of "The Guardian"

Ben Roberts-Smith: a war hero's reputation at stake in Australia's ... (The Guardian)

Extraordinary evidence has been heard over 99 days of hearings, at a cost of A$25m, as the Victoria Cross recipient sues three newspapers over allegations ...

The man was carrying the radio when he defied an order to stop and was engaged and killed, Roberts-Smith told the court. “I assessed this person posed a direct threat to the extraction of our forces so I engaged.” Roberts-Smith has also been accused of bullying comrades, of writing threatening letters to soldiers giving evidence to government inquiries, and of an alleged act of domestic violence, punching a woman with whom he was having an affair. He said the man was a “spotter” – a scout for enemy insurgents – discovered hiding in the cornfield as the troops walked towards their helicopter extraction point. An Australian soldier has told the court he saw Roberts-Smith kick the prisoner. Four times he told the court: “there were no men in the tunnel”. The man was an insurgent, lawfully killed within the laws of war, he said. He said he heard a muffled shot, and stepped back into the courtyard to see Person 4 standing above the elderly Afghan man, dead from a bullet wound to the head. “Then I observed him lower his machine gun and shoot approximately three to five rounds into the back of the Afghan male. The first, from April 2009, concerns an SAS raid on a compound in the southern Afghan village of Kakarak, codenamed Whiskey 108. It was also revealed in court that Channel Seven was paying the legal bills of Roberts-Smith’s friends who were called as witnesses. The case has drawn in government departments and pitched two of Australia’s media empires in scarcely concealed battle.

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Image courtesy of "The Sydney Morning Herald"

Court in the trenches: Behind the scenes of the Ben Roberts-Smith trial (The Sydney Morning Herald)

The off-stage drama in Ben Roberts-Smith's defamation trial included political manoeuvring, backstage machinations and a secret affair – though not the one ...

The trial was interrupted for months by the pandemic and nearly lost some of its witnesses due to the advance of the Taliban in Afghanistan. The video link from Kabul went down when the law office’s generator ran out of diesel. On August 11, Masters, McKenzie and Wroe confirmed his identity in a story under the headline “Beneath the bravery of our most decorated soldier”. On August 17, Roberts-Smith filed defamation proceedings. One soldier said the allegation that Roberts-Smith kicked a prisoner off a cliff in Afghanistan first appeared as a drawing on a whiteboard at the Tarin Kowt base. But the optics were tricky while they covered a trial in which Moses was litigating against their employer, and after he raised the threat of contempt, it was decided to park the story pending external confirmation. “I’m happy to sit down with you for an off-the-record chat but I don’t want to get yelled at by Nick McKenzie just because I’m doing him a favour by offering to help fix a looming disaster for him and the paper.” The media outlets are seeking to rely on a defence of truth and allege Roberts-Smith was involved in six unlawful killings in Afghanistan, including two in 2009 at a site known as Whiskey 108. McWilliam is a 40-year media veteran who once advised Kerry Packer and Rupert Murdoch, and is practised in the art of making problems disappear. However, neither Bromwich nor most of the media who ran that story would have grasped that Moses’ reference to “those lawyers” in his full-throated defence of Allen also captured his own personal life. This was not a criminal war crimes trial: it was a defamation suit, brought by Roberts-Smith, over a series of articles in 2018 that he says portray him as a war criminal complicit in the unlawful killing of unarmed Afghan prisoners. In one corner was the former SAS soldier accused of murder, domestic violence and bullying, who had made a virtue of his unwillingness to take a backward step and been honoured for courage on the battlefield. The start of the trial was delayed for a year due to COVID restrictions on travel and the courthouse. “In 2012, did you see pictures of a winged penis back at Tarin Kowt, at the base?” he asks, lifting his blue gaze to the witness.

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