Ben Roberts-Smith loses High Court bid to appeal defamation case

Former soldier Ben Roberts-Smith has lost his bid to appeal his failed defamation case against Nine newspapers in the High Court.

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”. A subsequent Federal Court appeal was dismissed.

Today, the High Court dismissed Roberts-Smith’s attempt to 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 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.

You have read 0 articles this year.

Your contribution ensures The Daily Aus can continue doing the work you love.

Appeal

The Federal Court panel heard the appeal earlier this year, and had begun deliberations when Roberts-Smith’s legal team received an audio recording of Nick McKenzie, one of the journalists behind the series of articles.

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 a witness to take the stand.

Roberts-Smith’s lawyers argued McKenzie’s actions meant there had been a “miscarriage of justice” during the original trial.

In May, Roberts-Smith’s lawyers sought to use the recording 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.

The panel of judges refused to re-open the appeal to consider the recording, and dismissed the appeal itself.

Roberts-Smith then sought to appeal to the High Court, his last resort in the Australian legal system.