The Substantial Truth

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“…theoretically at least, Ben Roberts-Smith could be prosecuted for War Crimes under Article 8 of the Rome Statute. But the criminal standard of proof beyond reasonable doubt is a much higher bar to be leapt than mere proof on the balance of probabilities, and the ICC already has its hands more than full.”

The recent culmination of the very public and scandalous trial of the civil defamation case by Australia’s most-decorated living war hero – the celebrated former soldier and later high-powered television executive, Ben Roberts-Smith – against Nine Entertainment publications The Age, The Sydney Morning Herald and The Canberra Times, has undoubtedly sent shock waves through Australia’s military services community. But it has also raised more than a few eyebrows, along with some curly and interesting questions, within the nation’s legal fraternity.

Mr Roberts-Smith, who was awarded a Medal for Gallantry in 2006, the Victoria Cross in 2011, and a Commendation for Distinguished Service in 2011 in recognition of his service in war-torn Afghanistan, launched the proceedings in 2018 following the papers’ sensational reporting of allegations that, during his time in Afghanistan, the former soldier committed a series of war crimes, including:

  • kicking an unarmed Afghan civilian off a cliff and encouraging soldiers under his command to shoot him;
  • pressuring a newly deployed and inexperienced SAS soldier to execute an elderly, unarmed Afghan, in order to “blood the rookie”;
  • murdering by machine gun fire a man who had a prosthetic leg; and
  • having murdered the disabled man, souveniring his prosthetic leg and encouraging soldiers to use it as a novelty beer-drinking vessel.

The assertions were undoubtedly ugly in the extreme and, if they were untrue, no one could blame the high-profile veteran for being outraged and wanting to sue. But, true or untrue, some lawyers were quietly wondering whether a hard-fought, high-profile court case, thrashing out what may or may not have happened in the thick fog of war, may do more harm than good for the reputation of Channel Seven’s urbane new general manager. The stakes were dialled up even higher when the defendants announced they would plead substantial truth in defending the action. In other words, they would argue they should not be held liable for the publication of the articles because they were the truth, or the substantial truth, which constitutes a complete defence to defamation under sections 25 and 26 of the Defamation Act 2005 (NSW). In so doing, the defendants would have to prove, on the balance of probabilities, that Mr Roberts-Smith did precisely what was alleged in the articles. That was always destined to be messy, whatever the outcome.

The trial cost an estimated $25 million to the parties, and was played out in lurid detail on every front page and television screen in the country. It was a news editor’s dream. And, in the end, Federal Court Justice Anthony Besanko found in favour of the defendants, ruling the defendants had proven – on the balance of probabilities – that they had told the substantial truth about Mr Roberts-Smith having murdered four Afghans, and broken the rules of military engagement.

But proof on the balance of probabilities is the civil standard. Criminal liability requires proof beyond reasonable doubt. Could Ben Roberts-Smith’s now face criminal charges in an Australian court? The short answer seems to be no.

Once upon a time, Australian authorities prosecuted war crimes under section 9 of the Commonwealth War Crimes Act. That section was enacted in the immediate aftermath to WWII, with the express intention of prosecuting Japanese soldiers for their wartime mistreatment of Aussie diggers. More than 800 Japanese soldiers were prosecuted under that Act. But, in 1989, following the discovery of alleged Nazi war criminals living on Australian soil, the scope of section 9 was amended to specifically target crimes committed in Europe between 1 September 1939 and 8 May 1945. After three unsuccessful prosecutions, the Act was eventually put out to pasture. So now, unless the federal parliament decides to resurrect it, Ben Roberts-Smith cannot be prosecuted here.

That leaves the International Criminal Court where, theoretically at least, Ben Roberts-Smith could be prosecuted for War Crimes under Article 8 of the Rome Statute. But the criminal standard of proof beyond reasonable doubt is a much higher bar to be leapt than mere proof on the balance of probabilities, and the ICC already has its hands more than full.

Meanwhile, in July this year, Mr Roberts-Smith appealed Justice Besanko’s judgement to the Full Court of the Federal Court, where three learned justices will decide whether or not His Honor got it right in the first place, even on the civil standard.

So, it looks like a whole lot more newspaper space is set to be filled before this sorry saga has finally been laid to rest.

Heidi Le Masurier

Gold Coast and Brisbane Lawyer

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