Judgment published in Ben Roberts-Smith case

5 June 2023

Today, the Federal Court of Australia released its judgment in three defamation proceedings brought by former Special Air Service Regiment soldier Ben Roberts-Smith VC MG against journalists Chris Masters, Nick McKenzie and David Wroe, and publishers Fairfax Media Publications Pty Limited and others.

Mr Roberts-Smith alleged that the respondents defamed him in a series of media articles published in June and August 2018. Mr Roberts-Smith said the articles conveyed 14 defamatory imputations including that he was a murderer and a bully, that he broke the moral and legal rules of military engagement and was therefore a criminal, and that he disgraced his country Australia and the Australian army by his conduct as a member of the Special Air Service Regiment in Afghanistan.

All three proceedings were dismissed. The Court (Besanko J) held that the respondents had successfully established defences of substantial truth or contextual truth to all the imputations conveyed. Among other things, his Honour found that Mr Roberts-Smith executed or directed the execution of four Afghan detainees, assaulted two other Afghan detainees, engaged in a campaign of bullying against a junior SASR trooper, and sent anonymous threatening letters to an SASR witness. His Honour also found that Mr Roberts-Smith deliberately failed to disclose relevant material in the proceedings (including material stored on USBs buried in a lunchbox in his backyard), and that Mr Roberts-Smith and several witnesses called on his behalf gave false evidence in the proceedings.

Christopher Mitchell
 of Banco Chambers appeared for the respondents led by Nicholas Owens SC (5 St James Hall) and Lyndelle Barnett (Level 22 Chambers), and until his retirement in early 2021, the late Sandy Dawson SC. They were instructed by Peter Bartlett of MinterEllison.

Link to judgment: