Former soldier Ben Roberts-Smith has lost his bid to appeal his failed defamation case against Nine newspapers.
Roberts-Smith sued the papers over articles alleging he committed war crimes in Afghanistan.
He denied all allegations and said they harmed his reputation. In 2023, a judge found some of the allegations were “substantially true”.
Today, the Federal Court dismissed Roberts-Smith’s appeal.
Roberts-Smith
In 2018, The Age and The Sydney Morning Herald (now owned by Nine) published a series of articles about Roberts-Smith.
They alleged Roberts-Smith either ordered or personally carried out six killings of prisoners in Afghanistan, in a manner constituting war crimes.
He was also alleged to have punched a woman he was having an affair with in a Canberra hotel room.
Several former soldiers testified at the trial, including then-Shadow Defence Minister Andrew Hastie, who said there was a “widespread” view that Roberts-Smith was a bully.
In June 2023, Presiding Justice Anthony Besanko found many of the claims made by Nine newspapers about the killings were substantially true.
Besanko was not sufficiently satisfied that the assault in Canberra occurred, but accepted the ‘contextual truth’ defence.
This means that even if the assault didn’t happen, the judge ruled there was sufficient context to dismiss claims of harm to Roberts-Smith’s reputation.
Roberts-Smith, who has always maintained his innocence, filed an appeal the following month. Federal court appeals are typically considered by a panel of judges.
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Appeal
In March, Roberts-Smith’s legal team received an audio recording of Nick McKenzie, one of the journalists behind the series of articles.
The recording is from a phone call between McKenzie and a key witness known in court documents as ‘Person 17’, a former partner of Roberts-Smith.
In the leaked audio, McKenzie can be heard saying he had engaged with Roberts-Smith’s ex-wife and her friend to uncover “his legal strategy”. The admission was allegedly made to encourage the witness to take the stand against Roberts-Smith.
Lawyers for the former soldier argued this evidence showed there was a “miscarriage of justice” due to McKenzie’s “misconduct” during the original trial. They sought to use it to re-open the appeal, meaning if they were successful, the judges would have consider it in their final decision.
McKenzie’s lawyers argued the recording should not be admitted as evidence because it was taken out of context, and recorded and published without consent.
On the stand this month, McKenzie admitted he has used “deceptive methods and subterfuge” to gain information for stories in his career, “if it is in the public interest”.
Today's decision
Today, the Federal Court handed down its decision on two matters:
the bid to re-open the appeal,
and the appeal itself.
The judges refused to re-open the appeal to consider the recording, and dismissed the appeal itself.
In the ruling, the judges said they were “unanimously of the opinion” that the evidence supported the claim “that [Roberts-Smith] murdered four Afghan men,” and denied his appeal.
Roberts-Smith was also ordered to pay Nine’s legal costs.
