Rachel Fieldhouse


“May justice be done”: Ben Roberts-Smith’s trial comes to an end

“May justice be done”: Ben Roberts-Smith’s trial comes to an end

The defamation trial launched by Ben Roberts-Smith against Nine newspapers has come to an end after four years, with Justice Anthony Besanko left with the final task of condemning or clearing the war veteran’s name.

Mr Roberts-Smith’s lawyers are hoping that finding in their client’s favour will see his name cleared and result in the largest defamation payout in history, while a finding in favour of his journalist opponents could validate their claims he committed “the most heinous acts of criminality” while serving in the SAS.

The lengthy case drew to a close on Wednesday after over 100 days of evidence, more than $25 million in legal fees and two weeks of closing speeches.

Arthur Moses SC, Mr Roberts-Smith’s barrister, used his closing statement to push the fact that Nine had the burden of proof to prove their claims the Victoria Cross recipient had murdered unarmed prisoners, 

“(Nine) published allegations and stories as fact that condemned Mr Roberts-Smith as being guilty of the most heinous acts of criminality that could be made against a member of the Australian Defence Force, and indeed any citizen,” Mr Moses said.

“It depends upon recollection of events that occurred during missions more than 10 years ago… Recollections which are contradicted either by their own witnesses, our witnesses and Defence Force documents.”

“They have urged upon the court a case which is one of mere suspicion, surmise and guesswork to condemn a man, who served his nation with great distinction, as a war criminal.”

Mr Moses called on Justice Besanko to reject Nine’s case “in all forms”.

Meanwhile, Nicholas Owens SC, representing Nine, closed his case by returning to the claims and counterclaims, including the question of Mr Roberts-Smith’s motive in killing six detained Afghans when he had transported hundreds of others safely back to Australia bases, which Mr Roberts-Smith said Nine had left unanswered.

When he opened his case in June 2021, Mr Owens said that even “the most brutal, vile member of the Taliban imaginable” can’t be killed once detained and “to do so is murder”.

On Wednesday, he returned to this point and said Mr Roberts-Smith killed the detainees simply because they were “enemy combatants”.

“We say that was a powerful motive that operated in relation to all of these incidents… it was a motive to kill Taliban insurgents regardless of the lawfulness of doing so,” Mr Owens told the court.

Justice Besanko thanked lawyers on both sides, as well as the legal team for the Commonwealth government who had been on-hand every single day in court to keep highly classified material out of the public sphere.

With the trial conducting itself in a combination of open and closed court, with sensitive information and testimonies being held in closed court, the full scope of evidence Justice Besanko must consider isn’t well-known.

It is also unknown just how long it will take Justice Besanko to reach a verdict, given the sheer volume of evidence and documents, but it is expected to take many months.

Nick McKenzie, one of the journalists Mr Roberts-Smith launched his case against, took to social media following the trial’s conclusion to summarise the claims made against Mr Roberts-Smith and call for justice to be done.

“Roberts-Smith trial is now over, save for judgement,” the Age journalist wrote.

“4 years ago RS (Roberts-Smith) launched it. Such stress for all involved: SAS eye witnesses who accuse RS of murders/kicking of innocent Afghan father, Afghans who witnessed the same, brave woman who spoke up about (domestic violence).

“May justice be done.”

Image: Getty Images

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