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Barristers clash over ‘presumption of innocence’ in Ben Roberts-Smith costs dispute

The presumption of innocence has been called into question during a hearing to determine whether Ben Roberts-Smith should have to pay the media’s costs in his failed defamation proceedings.

user iconNaomi Neilson 04 September 2023 Big Law
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Although he has accepted he should pay indemnity costs, the former soldier has told the Federal Court of Australia he should not have to pay the costs for The Sydney Morning Herald, The Age and the Canberra Times on an indemnity basis for the entire proceedings.

Appearing on his behalf, barrister Arthur Moses said the publication of articles that alleged Mr Roberts-Smith had murdered innocent Afghanistan citizens placed his client in an “invidious position” where they “persisted in running articles that he was a war criminal”.

“The publication of the articles put the applicant in an impossible position as a citizen. He was, and remains, entitled to the presumption of innocence,” Mr Moses said on Monday (4 September).


“The media were not entitled to go around and publish the articles in circumstances where he was entitled to a presumption of innocence.”

Nicholas Owens, barrister for the media defendants, told Justice Anthony Besanko it was not open to Mr Moses to propose the media does not have a right to say Mr Roberts-Smith was a war criminal.

“While presumption of innocence does involve, as it were, keeping an open mind (as to someone’s guilt) … and while in a sense it played an important role in the nature of the fact-finding in this case … it does not operate as some overriding prohibition on the publication of material.

“Therefore, it cannot be used as an argument justifying why Mr Roberts-Smith chose to commence the proceedings,” Mr Owens said.

Mr Roberts-Smith lost his defamation case in July after the Federal Court found that allegations made in the media articles that he unlawfully executed men were “substantially true”.

Mr Roberts-Smith has since filed an appeal.

During Monday’s hearing, Mr Owens told the court Mr Roberts-Smith was wrong to argue that he did not prolong the proceedings.

“We say, with respect, that’s precisely what he did.

“The entire proceedings in its simple existence was a prolonged proceeding which ought not to have been brought,” Mr Owens said.

He went on to add that had Mr Roberts-Smith “told the [truth]”, there would not have been a need for extensive witness evidence and cross-examinations that stretched over several days.

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