Ben Roberts-Smith tried to clear his name — it proved to be an ...

1 Jun 2023

If Ben Roberts-Smith thought his reputation was in tatters before, it's hard to imagine what state it's in now.

Ben Roberts-Smith tried to clear his name — it proved to be an ... - Figure 1
Photo ABC News

Justice Anthony Besanko's judgement was devastating for Australia's most decorated war veteran.

Mr Roberts-Smith took the publishers of The Sydney Morning Herald, The Age and The Canberra Times, as well as three journalists, to the Federal Court in a bid to prove the allegations they made against him of war crimes, bullying and domestic violence weren't true.

His defamation action became one of the longest, and most expensive in Australian history.

It's ended in an own goal — after 110 days of gruelling evidence, and multi-million-dollar legal bills, the judge threw his case out.

In a matter of minutes, Justice Besanko worked his way through the 16 imputations one-by-one, finding Mr Roberts-Smith was a war criminal and murderer.

By nature, defamation cases expose their initiators to the risk that all manner of personal and private affairs will be aired publicly.

In the pursuit of vindicating their reputation, they also endure fiery encounters with their opponent's lawyers during cross-examination and the ongoing stress of litigation, which can drag on for years.

While Mr Roberts-Smith wasn't named in any of the stories, which were published in 2018, his legal team argued he was easily identifiable.

If he wasn't, he certainly is now.

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Photo ABC News

As Mr Roberts-Smith sat in court silently watching, his former comrades revealed details of internal culture and division in the elite SAS and rumours spread about him.

His former girlfriend was quizzed about intimate details of their affair, including a pregnancy.

His ex-wife testified about the "chaos" that ensued in her life when she found out about the relationship.

There was even an appearance from a private detective who explained odd assignments tasked to him by the veteran.

High-profile barrister Arthur Moses cracks a smile during the trial.(AAP: Bianca De Marchi)

In the words of his barrister, Arthur Moses SC, Mr Roberts-Smith's cross-examination involved "the most intimate and personal details of his life" being subject to questioning.

His opponents also launched a "full-frontal attack" on his character.

"Are there aspects of Mr Roberts-Smith's personal life that he regrets or are embarrassing? Absolutely, and he says so," Mr Moses told the court during a closing address.

"We're all fundamentally flawed as humans. Nobody is perfect in their personal life.

"But that doesn't make somebody a murderer."

Mr Roberts-Smith was not in court for Justice Besanko's judgement.

Mr Moses simply told reporters he would "consider the lengthy judgement" as he left court.

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Photo ABC News
Spotlight on Victoria Cross

During the trial, Mr Roberts-Smith's conduct as an elite soldier was methodically scrutinised during his cross-examination, and during the evidence of his ex-colleagues.

It became clear, on the evidence of Nine's SAS witnesses, that he was a divisive figure amongst some colleagues.

Ben Roberts-Smith poses for snaps in front of his Victoria Cross display at the Australian War Memorial in 2011.(AAP: Alan Porritt)

One of the most common rumours, according to witness Person 18, stemmed from questions around whether Mr Roberts-Smith deserved his Victoria Cross.

Mr Roberts-Smith was awarded the highest military accolade for his actions during the Battle of Tizak in 2010.

The unit was "a very toxic environment" where any rumour "expanded tenfold", that soldier said.

Another witness, Person 43, admitted he'd told many colleagues the VC was "in doubt", in part due to its wording.

Mr Roberts-Smith's lawyers said it was this very accolade that put a target on his back, framing the case as one of corrosive jealousy and involving lies fed to journalists by their client's bitter colleagues.

Media mogul Kerry Stokes stepped down as chair of the Australian War Memorial last year.(AAP: Mick Tsikas )

The proceedings will be among the most expensive in Australia's history, with some estimates placing the legal costs at $25 million.

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Photo ABC News

Nine has broadcast secret recordings in which the veteran appeared to say he was indebted to his media mogul boss, Kerry Stokes, for financially supporting the case.

He has reportedly offered his VC as collateral.

While the eye-watering bills are straightforward to quantify, the personal cost to Mr Roberts-Smith is more complicated.

'I hope Ben survives this nightmare'

It wasn't just accounts from Afghanistan being aired in court.

The trial also placed Mr Roberts-Smith's life in Australia under the microscope.

During his cross-examination, he admitted he kept classified images at his home on USB drives, accepting it was a "poor decision" but denying it may have imperilled national security.

He defended that decision by reminding the court he was being "attacked" by journalists and said his only intention was sharing them with his lawyers.

In the witness box, Mr Roberts-Smith agreed that in 2018, he burned his computer hard drive using petrol, but denied doing it because he was "beginning to panic" about being investigated.

He told the court he always destroyed hard drives if he wasn't trading in the computer, to protect personal information, passwords and photos being retrieved.

Ben Roberts-Smith claims his reputation was destroyed by three newspapers and three journalists.(AAP: Dan Himbrechts)

When Nine called his ex-wife as a witness, the focus shifted to a more personal level yet again.

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Photo ABC News

Expletive-laden text messages between Emma Roberts and her best friend were revealed, including one in which she referred to him as a liar and a cheater, and added "#Titanic".

But Ms Roberts told the judge she was going through a divorce at the time and was "very frustrated".

She denied her purpose in testifying was revenge and rejected the suggestion she came to court to inflict as much damage as possible.

"I hope Ben survives this nightmare," she said.

Emma Roberts gave evidence at her ex-husband's defamation trial.(AAP: Bianca De Marchi)

Ms Roberts said her life was in "complete chaos" after a woman turned up to her Queensland home in April 2018 to disclose an affair with Mr Roberts-Smith.

She claimed her ex-husband gave advice; the only way to "survive" a media article about the affair would be to lie and say they were separated.

The woman on Ms Roberts' doorstep that day also gave evidence under the codename Person 17.

She detailed a tumultuous, all-consuming affair that began with their meeting at a charity event in 2017.

The woman recalled falling pregnant the following March and said the pair spoke about a termination before she miscarried.

Person 17 told the court Mr Roberts-Smith made her take two pregnancy tests in front of him at a Brisbane hotel, and throughout her evidence threads of messages between the pair were made public.

It was also revealed Mr Roberts-Smith once had a private detective follow the woman to an abortion clinic which, according to the veteran, was because he believed he was being "manipulated".

Of the dozens of former and current SAS soldiers who gave evidence under code names during the trial, many openly admitted they did not want to be there.

Federal MP and former elite soldier Andrew Hastie, called by Nine, was among those subpoenaed and fell into this category.

After denying under cross-examination that he disliked Mr Roberts-Smith, he said he instead pitied him.

"I pity this whole process," he said.

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