History is at stake as two sides face off in the Ben Roberts-Smith case

Not far into the opening morning of the epic Ben Roberts-Smith defamation trial in Sydney this week came a fleeting moment of unanimity between the two barristers heading the opposing legal teams.

Nicholas Owens, SC, for the media organisations, pleaded with presiding Federal Court judge Anthony Besanko to “lend weight” to efforts to persuade the federal government to declassify more secret documents and photographs that might prove central to the case.

Ben Roberts-Smith leaves the Federal Court in Sydney on Wednesday. Credit:Dylan Coker

Bruce McClintock, SC, appearing for the former soldier, leapt up saying it was “perhaps for the last time in the course of this trial, your Honour” that he would be speaking “in support of what my learned friend Mr Owens has said”.

Given that both sides are already suggesting the other is giving credence to outright lies, McClintock is no doubt right there’ll be very little else on which the two sides will agree.

Whatever their differences on the key claims, both sides believe they will gain from getting as much of this battle into open court as possible, against regular interventions from the Commonwealth seeking to throw a national security blanket over portions of the evidence.

At a cursory glance McClintock and Owens are a study in contrasts. The tall, bespectacled Owens, a multiple prize-winner at university and a noted star of the commercial bar, has never run a defamation case before. McClintock, famed for his bulldog-like effectiveness in attack, has spent decades in the legal trenches as a defamation specialist and has said this will be his last case before retirement.

Owens comes across as the milder-mannered of the two but it quickly became apparent from his opening address on Thursday that he’ll be pulling no punches.

This contest between The Age, The Sydney Morning Herald and The Canberra Times on the one hand, and the highly decorated Roberts-Smith on the other, will be a war crimes trial by proxy albeit to a civil standard of proof, Owens flagged.

“None – not a single one – of the six murders that we allege Mr Roberts-Smith either committed or was involved in, involved decisions that were made in the heat of battle” Owens asserted.

Instead, he said, six Afghani men – on separate occasions over a number of different missions – died at the hands of Roberts-Smith or with his blessing in situations where they were either already a prisoner or rendered incapable of combat.

Under those circumstances, Owens went on, they should have been entitled to protection under the Geneva Conventions even if any one of them could have been “without a shadow of a doubt the most brutal, vile member of the Taliban imaginable”.

But asked later by McClintock if he thought it was acceptable to kill unarmed people under the control of Australian troops, Roberts-Smith replied: “Absolutely not.” He said every time he heard or read that allegation he couldn’t believe it and it felt like he was “in a bloody nightmare”.

There is more at stake in this trial than contested events on the battlefields of Australia’s longest and messiest war.

The allegations the mastheads have levelled against Roberts-Smith also include claims of bullying of fellow soldiers, and a separate claim of an act of domestic violence against a former lover (who will be known only as Person 17 during the trial).

But at the very heart of the case will be whether Roberts-Smith will walk away forever labelled a murderer, or whether the Victoria Cross-winner will retrieve his place in the pantheon of the country’s greatest war heroes.

Ben Roberts-Smith with the SAS in Uruzgan province, Afghanistan.Credit:Australian Defence Force

Much will turn on whether McClintock can convince Justice Besanko, presiding over proceedings in room 18D of the Federal Court building in Sydney, that the six deaths were legitimate under the army’s secret rules of engagement at the time. In an environment where insurgents did not wear uniforms, where any seemingly-harmless civilian or farmer might turn out to be a combatant, “perspective is everything” McClintock argued this week.

Even an act as simple as a man putting a hand in his pocket, which might presage activation of an explosive device or suicide vest, “could enliven the rules of engagement and entitle a soldier observing that action to use lethal force”.

“Implementing the rules of engagement … is a matter of impression unique to the person making the decision” McClintock added.

Owens is likely to argue that this is an excessively liberal interpretation of what the rules of engagement allow, even for the elite SAS of which Roberts-Smith was a part.

Much will also come down to the credit and recollections of the military witnesses lined up by each side, who will be known only by numerical pseudonyms to protect their identities. Owens revealed this week that the media outlets are planning to call as many as 21 former and current special forces soldiers to back the newspapers’ case.

These witnesses, Owens says, have no reason to lie. Many have not spoken to each other about what they saw in Afghanistan. They were in a range of different patrols. Some were troops on their first rotation, others were seasoned commanders. “Conspiracy between them is, we will submit, simply impossible” Owens told the court on Thursday.

By contrast, he pointed to what he saw as suspicious conduct between Roberts-Smith and the latter’s former comrades.

In 2016, two years before the media outlets broke their stories concerning the highly decorated ex-soldier, the Inspector-General of the Australian Defence Force had already embarked on a highly confidential external inquiry into allegations of war crimes committed by Australian troops, a probe which later became known as the Brereton inquiry.

Owens said his evidence would show that when that inquiry began interviewing some of Roberts-Smith’s associates the former soldier purchased two “burner” phones so he could speak to friends without fear of being tapped.

Owens went on: “Several months later, days after his own first interview with the Inspector-General, Mr Roberts-Smith arranged for two further burner phone numbers to be purchased for him. Subpoenaed material from the telephone companies will demonstrate a remarkable pattern of spikes in the usage of those phone numbers around critical events, such as Mr Roberts-Smith’s first interview with the Inspector-General”.

McClintock has yet to lead Roberts-Smith through this aspect of the case but he has already flagged how he will seek to shoot holes in Nine’s defences. He will highlight, in the first instance, the length of time that has elapsed since the contested events, the earliest of which took place in 2006. The first of the contested killings took place on Easter Sunday, 2009, in a compound designated Whisky 108 by the Australian troops conducting operations there.

Were memories forged under the stress of war so long ago likely to be reliable especially since official reports at the time recorded no misconduct, McClintock asked?

Drinking from a prosthetic leg was ‘gallows humour’, a way to ‘decompress’ and ‘let go of some of the demons that they deal with’.

Perhaps, he suggested, those accusing his client of misdeeds could have been “confused, mistaken, or have false memories because of the trauma of the missions – the multiple missions – in a war zone over a period of years”.

His second line of attack will rest on the motivations of those who Nine – the current owner of The Age and the Herald – will seek to call to the witness stand. McClintock argues that many of those witnesses are motivated by jealousy, or in other cases resentment because he exposed their weaknesses on the battlefield.

The soldier identified as Person 1, for instance, had left his 6-man patrol, including Roberts-Smith, critically exposed high on a ridge-line during a battle in the Chora pass because he had forgotten to bring gun oil to lubricate the group’s only machine gun. On another occasion, that soldier had been more focused on preparing his lunchtime noodles than on obeying an order to move his vehicle to a more protected position, McClintock said.

Roberts-Smith told the court that being awarded the Victoria Cross for valour in battle in 2011 had been an honour but had also “put a target on my back” and brought him “a lot of misfortune and pain”. McClintock will continue pursuing this line forcefully .

“My client was an exceptional soldier: highly organised; disciplined; a leader; resourceful; and exceptionally brave” he said.

But “what is clear is that, by 2014, a number of soldiers had developed enormous jealousy of my client connected primarily with awards he received. They resented those awards and above all the Victoria Cross”.

Owens however says it defies credibility that the men Nine will call to the stand, some of whom were allegedly involved in crimes themselves, are all motivated by envy.

“Is it really to be supposed… to take the most extreme example, that a man would himself confess to murder just so as to give vent to some jealousy about a medal?” Owens asked.

Roberts-Smith was visibly overcome in the witness box on Thursday as McClintock led him step by step through his actions during the heavily-fought battle of Tizak in 2010, the battle which delivered the former soldier the VC. It was a momentary crack in the otherwise supremely confident façade he’d presented all week, striding up the courtroom steps each morning in a crisp white shirt and sharply tailored suit, shoes shone to a high brilliance.

It was not the only theatre the week provided. The former soldier’s personal life also came into the spotlight, both in the courts, and in the media. Journalists covering the case were galvanised on Wednesday by developments in a different court-room, a floor above the Roberts-Smith trial, where another judge, Justice Robert Bromwich, was presiding over a related case involving Roberts-Smith’s former wife, Emma Roberts.

Ms Roberts was initially going to be a witness for her husband but recently decided to give evidence for Nine.

Her decision to back the media company’s case prompted her ex-husband’s legal team to launch an eleventh-hour legal strike alleging she’d had access to an email account he’d used to communicate with his lawyers. They sought urgent orders from Justice Bromwich seeking the handover of any such material on the grounds of a potential breach of legal professional privilege.

It was while interrogating the basis for those orders on Wednesday morning that the judge stunned everybody by raising the question of whether the ex-soldier had had a personal relationship with a member of his legal team, solicitor Monica Allen, his honour saying he’d seen reports to that effect in the media, and that he should have been alerted to the issue.

Ironically the way this curveball entered the case was via a soft-focus piece on Roberts Smith which had appeared in last Sunday’s Daily Mail, showcasing photos of the tattoo-ed war hero limbering up for his court case with a workout near a set of well-known steps in harbourside Woolloomooloo.

One of Ben Roberts-Smith’s legal team, Monica Allen.Credit:Janie Barrett

That prompted a brief item in the Australian Financial Review the next morning, suggesting that after the training session, Roberts-Smith had taken a path to the apartment block where Allen normally resided.

The AFR piece recalled for many an item a year earlier in News Corp’s Brisbane Courier Mail which had published pictures of Allen and Roberts-Smith holding hands in public – an encounter Allens’s boss, Mark O’Brien later characterised as evidence of a purely social friendship between the pair, which was probably “unwise’“.

On Wednesday afternoon Roberts-Smith’s lawyers rushed back into court to emphatically state there was “no relationship” between Allen and the former soldier and that Nine (owner of the AFR) had been party to a “deplorable slur” as part of an attack on his lawyers.

Nine strenuously denied any such suggestion.

Roberts-Smith was also questioned this week about the provenance of a prosthetic leg souvenired from battle, which ended up as a drinking vessel for SAS troops at their bar back at the Tarin Kowt base, strikingly named the Fat Lady’s Arms.

Ben Roberts-Smith and friend with a novelty drinking vessel made from the prosthetic leg of an Afghan man.

Roberts-Smith acknowledges shooting the man but says he did so in battle. He didn’t souvenir the leg himself, nor ever drink from it. But he didn’t condemn those who did. It was “gallows humour”, a way to “decompress” after returning from situations where “you expect that you may get killed at any moment”, he said. It was “just about people being able to let go of some of the demons that they deal with”.

With weeks of this trial yet to run, it’s impossible to gauge at this early stage which side has the upper hand. One thing is certain already, though. As the trial continues, the Australian public will be getting a very different picture of the long, untidy war in Afghanistan than that curated by Defence’s public relations department over the years.

With Michaela Whitbourn

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