In Australian defamation court, a proxy 'war crimes trial' nears judgement

Nine Entertainment Holdings

30/05/2023 03:59

By Byron Kaye
       SYDNEY, May 30 (Reuters) - Australian special forces
soldier Ben Roberts-Smith was lauded as a hero and awarded
Australia's highest military honour for "conspicuous gallantry"
during a 2010 attack on two Taliban machine-gun posts during his
fifth tour of Afghanistan.
    But according to three newspapers, backed by accounts of
other soldiers who said they were there, the Victoria Cross
recipient also played a part in the unlawful killings of six
Afghans during his deployment.
    The accusations are at the heart of Australia's costliest
and second longest-running defamation lawsuit for which a
judgement is scheduled on Thursday. 
    Legal experts say that while the civil hearing focused on
reputational damage brought by a series of 2018 articles, it
effectively played out as the country's first war crimes trial.
    "Because the principle defence here is truth, what the trial
has become is a de facto war crimes trial," said David Rolph, a
professor at University of Sydney law school who specialises in
media law, referring to one of the available defences in
Australian defamation cases.
    "The stakes are incredibly high," he added.
    The judgement comes at a time of heightened sensitivity
around Australia's military after a 2020 report said there was
credible evidence members of the special forces killed dozens of
unarmed prisoners in Afghanistan.
    No soldiers were named in the redacted report but about two
dozen current and former Australian soldiers were referred for
potential criminal prosecution.   
    The Sydney Morning Herald, the Age and the Canberra Times
newspapers in 2018 ran articles accusing Roberts-Smith of
unacceptable use of force against unarmed Afghans from 2009 to
2012.
    Roberts-Smith, one of just 101 soldiers to receive the
Victoria Cross, sued the newspapers in 2020, saying they falsely
accused him of being complicit in war crimes. 
    By then an in-demand public speaker and an executive at
broadcaster Seven West Media  SWM.AX , Roberts-Smith said he
lost substantial future earnings as a result.
    The newspapers, in 110 days of judge-only hearings spread
over a year that was interrupted by COVID-19 restrictions,
maintained their claims were true and put forward witnesses,
including soldiers and Afghan civilians, to support their
claims.
    Roberts-Smith, who funded his lawsuit partly with a loan
from billionaire Seven boss Kerry Stokes, claimed the opposition
witnesses were fantastists and disgruntled failed soldiers. He
also put forward former soldiers as witnesses who supported his
actions.
    He seeks compensatory damages, aggravated damages and
damages for future economic loss, although his lawyers did not
give a total amount sought.
    The Nine Entertainment Co Holdings Ltd-owned  NEC.AX 
Herald, one of the defendants, reported the trial's legal costs
totalled A$25 million  ($17 million), which the losing side may
be ordered to pay, legal experts said.
($1 = 1.4743 Australian dollars)

 (Reporting by Byron Kaye; Editing by Lincoln Feast.)
 ((byron.kaye@thomsonreuters.com; +612 9171 7541; @byronkaye;))