Ben Roberts-Smith’s appeal against his loss in a landmark defamation case will be heard in February amid a considerable range of security measures intended to protect witnesses and national security information.
This follows a Federal Court judgment in June that found the war veteran guilty of war crimes during a defamation case against The Age, The Sydney Morning Herald, and The Canberra Times, in which he lost.
Mr. Roberts-Smith claimed that the newspapers published a series of allegedly defamatory articles that wrongly accused him of committing war crimes in Afghanistan, of bullying Special Air Services (SAS) soldiers, and of assaulting his mistress.
On Aug. 24, the federal court heard details of the security measures required for the veteran’s appeal, which will be held over 10 days in February 2024.
For instance, encoded safes would be installed and blinds drawn in judges’ chambers to protect sensitive evidence; separate secure courtrooms would be allocated to hear some arguments in a closed court; secure computers would be used for drafting closed court submissions; and smartwatches would be removed from judges’ wrists in the closed court.
Justice Nye Perram heard that it would be easier to have two appeal books: one for open court and one for closed court.
“There’s a lot of restrictions that go along with managing this material,” Nicholas Owens SC, for Nines newspapers, said.
Jennifer Single SC, a barrister acting for the Commonwealth, said the government was ready “to assist in the logistics of the appeal.”
Roberts-Smith’s Appeal
In a notice of appeal, lawyers for Mr. Roberts-Smith said the June judgment by Justice Besanko placed weight on “unreliable” or “improbable” aspects of the witness testimony.The appeal claims that Mr. Besanko “added to and cherry-picked” the evidence of one witness in relation to a mission at a Taliban compound called Whiskey 108 in 2009, where two people were allegedly murdered.
Matthew Richardson SC, the lawyer for Mr. Roberts-Smith, told the court that the appeal will contest the allegations made by Mr. Besanko that Mr. Roberts-Smith committed four murders.
In June, Mr. Besanko found that witness testimony from former SAS soldiers and three Afghan nationals held “substantial truth.”
However, Mr. Besanko also found that not all imputations made by the newspapers were true. For example, truth defences were not accepted over allegations that Roberts-Smith shot a terrified adolescent in the head before an AK-47 rifle was placed on the deceased’s body to imply that the adolescent was armed.
Among the findings that held “substantial truth” was the allegation that Roberts-Smith kicked an Afghan detainee off a cliff and ordered his troops to shoot him dead.
Another allegation found to be true was the allegation that Roberts-Smith ordered a “rookie” inexperienced SAS soldier to execute an unarmed Afghan detainee in a tunnel. A second Afghan detainee who had a prosthetic leg was shot dead with a machine gun in the same tunnel. His prosthetic leg was then taken back to Australia and used as a drinking vessel.
Another finding Mr. Besanko found to be true was that Roberts-Smith ran a “campaign of bullying” against a “small and quiet soldier” named Trooper M that included threats of violence.
Mr. Besanko also accepted a contextual truth defence to allegations that Roberts-Smith punched his mistress in the temple, which caused her to stagger and fall onto a bed in a Canberra hotel room in March 2018. This defence means that no further harm was done to his reputation.
In a separate matter to the appeal, the newspapers are seeking a third-party costs order from Mr. Roberts-Smith’s financiers—including Kerry Stokes’ private company, Australian Capital Equity, and the Seven Network.
The cost of the 110-day defamation trial that spanned over two years is estimated to be $35 million (US$22.5 million).
