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What to expect from Ben Roberts-Smith’s failed defamation trial

Ben Roberts-Smith has lost one of the biggest defamation trials in Australia’s history, so what does this mean for the future of the media landscape, potential criminal proceedings and a possible appeal? Defamation law experts have weighed in.

user iconNaomi Neilson 07 June 2023 Big Law
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Following a costly trial estimated to be worth more than $25 million, Australia’s most decorated living soldier and Victoria Cross recipient failed to persuade the Federal Court that three newspapers falsely portrayed him as a callous murderer and war criminal.

Justice Anthony Besanko found Mr Roberts-Smith murdered Afghanistan civilians, threatened witnesses and deliberately hid potentially damaging evidence from a court. He laid out his reasons in a 736-page written judgment published on Monday (5 June).

According to Dentons Australia's managing associate and litigation lawyer Sylvia Alcarraz, it “was always going to be significant” no matter the outcome and is “obviously a huge win for investigative journalism”.


“In the territory of a really high-risk publication, given the allegations that are made, (it shows) that with enough evidence, it’s possible to defend a defamation claim with reliance on a justification or substantial truth defence only,” Ms Alcarraz told Lawyers Weekly.

According to Ms Alcarraz, it is “very rare” for media to win a defamation trial on the defence of truth because it is difficult to prove.

She said the last time media were successful was in 2021 when former Seven Network sports reporter Josh Massoud lost a defamation trial against five publications over reports he was fired after threatening to slit a junior colleague’s throat.

Johnson Winter Slattery media and defamation partner Kevin Lynch told Lawyers Weekly that the Mr Roberts-Smith trial would give future defamation defendants a “real shot in the arm”.

“Most lawyers know that the best defamation defence is truth; it is just that in so many cases, costs, uncertainty, rulings from the court and factual shortcomings see a publisher come up short,” he said.

Given the defamation trial started prior to reforms, Mr Lynch confirms that “despite its scale and prominence there is very little in this judgment that moves the dial for defamation practice”.

"It turned on substantial truth and contextual truth. Nine did not launch the leaky life boat of qualified privilege. The new defence for publication of matters concerning issues of public importance was introduced after these publications and would not have been required given the court’s findings on truth. We are still waiting for the new defence to get a run."

Ms Alcarraz said if Ben Roberts-Smith won, it might have instead had a “really huge, chilling effect on public interest journalism and on media outlets investing in investigations of stories like this that raise probably really dark and very uncomfortable truths”.

“It’s very important to talk about (those truths) because ultimately, this is all working to create a much more informed society that seeks to promote accountability, particularly in this case, and transparency for really important matters,” Ms Alcarraz said.

What the trial may do for defamation parties moving forward is highlight the “financial reality”, according to Mr Lynch, who added that very few organisations would have the money and resources to spend and risk “to the extent they did in this case”.

He said what that means is stories are often stopped prepublication and cases are settled on a commercial basis.

“As well as being legally conventional, the Ben Roberts-Smith experience confirms something that defendants have long known — defending a publication is expensive and hard,” Mr Lynch said.

As for what this could mean for reputational considerations moving forward, Ms Alcarraz said that while an applicant will set the “playing field”, it will no longer be in their hands once the courts take over.

“It’s really, really risky,” Ms Alcarraz said.

“We’ve seen in this case, the risk hasn’t paid off, and it’s been really, really damaging to Mr Roberts-Smith’s reputation.”

Will there be an appeal?

An appeal by Mr Roberts-Smith to the full bench of the Federal Court is expected following his counsel’s request to extend the 28-day deadline to file an application to 42 days.

According to Ms Alcarraz, what may be interesting about this appeal is Justice Besanko’s finding of adverse credit in respect of evidence given by Mr Roberts-Smith and four of his key witnesses.

Justice Besanko said Mr Roberts-Smith was “not an honest and reliable witness” and had motivations to lie to the court.

“The applicant has motives to lie, being a financial motive to support his claim for damages in these proceedings, a motive to restore his reputation, which he contends has been destroyed by the publication of the articles, and significantly, a motive to resist findings against him, which may affect whether future action is taken against him.”

Ms Alcarraz said putting aside whether or not there have been errors of law in Justice Besanko’s judgment, these findings could potentially make it difficult for the former soldier to successfully appeal.

“One of the challenges is going to be in relation to the findings of credit, which would need to be displaced by the full Federal Court in order for there to be prospects of success,” she said.

What about future criminal proceedings?

What is important to remember in Mr Roberts-Smith’s case is the defamation trial does not automatically mean a criminal conviction, and it cannot be tried the same, Ms Alcarraz said.

“This was the case that raised really serious allegations in relation to criminal activity, but it is really important to remember that this is a civil case, which had to be decided in a civil court and was decided on the balance of probabilities,” Ms Alcarraz said.

In comparison, criminal cases have to find guilt beyond reasonable doubt. In this particular case, Ms Alcarraz added, it is important to also note the nature of the allegations that were made and apply them to the Briginshaw standard of proof.

Mr Lynch agreed, telling Lawyers Weekly that Mr Roberts-Smith has not been charged or convicted of anything.

“Any action in those jurisdictions will have different powers, rules and standards of proof,” Mr Lynch said.

How will this defamation case be different?

Another important consideration in this trial is how it highlighted the issue with defamation laws more generally, Ms Alcarraz said.

While Mr Roberts-Smith was the person who chose to commence the defamation proceedings, the burden of proof was actually on the defendants because “of the way defamation laws work, by virtue of the effect the law presumes falsity”, she added.

“It’s a difficult place to be,” Ms Alcarraz said.

One of the reforms introduced on 1 July last year is the new statutory defence for a publication on the issue of public interest, which Ms Alcarraz said aims to “protect responsible journalism”.

“It applies in a case where a defendant can demonstrate the publication concerns an issue of public interest. Secondly, the publisher needs to show that they reasonably believed that publishing it was in the public interest,” Ms Alcarraz said.

This defence did not apply to Mr Roberts-Smith’s matter because the proceedings were brought before the reforms. The defence has not yet been tested in a court since the reforms.

Ms Alcarraz said Australia came really close to testing the reform in the Lachlan Murdoch v Crikey defamation case, “which was going to be the first case to test the defence”, but it has since been settled.

“It’s interesting that there is this defence now that is available to media which wasn’t at the time,” Ms Alcarraz said.

“Even still, (the newspapers) managed to win on the defence of truth, which everyone knows is the best defence.”