Whilst Australian cases are not binding in the Courts of England and Wales, the legal system in Australia is largely the same as in England and Wales and accordingly judgments reached by Australian Courts are persuasive in the English Courts. It is therefore worth considering the recent case involving accusations made against a highly decorated former soldier, Ben Roberts-Smith, not least because the trial was reported to have lasted a staggering 110 days!
Ben Roberts-Smith defamation case
Mr Roberts-Smith brought a defamation case against various media outlets in respect of some very serious accusations that they had made against him. The accusations ranged from domestic violence to murder and war crimes.
An interesting feature of this case is that large parts of it were held in closed Court. This is perhaps unsurprising as a number of the accusations related to operations that took place in Afghanistan and related to covert military intelligence. It is perhaps therefore not surprising that the Court felt that the National Security meant that the entirety of the case could not be made public. For the avoidance of doubt, a similar National Security exemption is available in the Courts of England and Wales by way of example see here.
The accusations were split into three as they related to each of the publications. There was no dispute that the articles referred to the Claimant, although the first two did not name him, instead referring to a soldier by the name of Leonidas. The last of the articles did refer to Mr Roberts-Smith by name. The imputations alleged by the Claimant (most of which were either agreed upon between the parties or accepted by the Court (helpfully set out by the Australian Courts as a summary on 1 June 2023) were as follows:
“The first group of articles were published on 9 and 8 June 2018. The applicant claimed that the following imputations were conveyed or communicated by the Group 1 articles:
(1) The applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
(2) The applicant broke the moral and legal rules of military engagement and is therefore a criminal (Imputation 2).
(3) The applicant disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan (Imputation 3).”
“The second group of articles were published on 10 and 9 June 2018. The applicant claimed that the following imputations were conveyed or communicated by the Group 2 articles:
(1) The applicant while a member of the SASR, committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to “blood the rookie” (Imputation 4).
(2) The applicant while a member of the SASR, committed murder by machine gunning a man with a prosthetic leg (Imputation 5).
(3) The applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him (Imputation 1).
(4) The applicant having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel (Imputation 6)…”
“The third group of articles were published on 11 and 10 August 2018. The applicant was named in these articles and there was never any identification issue. The applicant claimed that the following imputations were conveyed or communicated by the Group 3 articles:
(1) The applicant committed an act of domestic violence against a woman in the Hotel Realm in Canberra (Imputation 7).
(2) The applicant is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman (Imputation 8).
(3) The applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol (Imputation 9).
(4) The applicant during the course of his 2010 deployment to Afghanistan, bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off (Imputation 10).
(5) The applicant as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat (Imputation 11).
(6) The applicant engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence (Imputation 12).
(7) The applicant threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the applicant’s (Imputation 13).
(8) The applicant assaulted an unarmed Afghan in 2012 (Imputation 14).”
Comment
The defence run by the media outlets accords with one available in the Courts of England and Wales – a defence that the accusations are substantially true. The Court found that the accusations were in the main substantially true and accordingly Mr Roberts-Smith lost his claim in defamation. The outcome of this trial is civil in nature and, at present there has been no suggestion that criminal proceedings may follow. That will of course rest with the Australian authorities as to whether they wish to pursue criminal proceedings. What is however clear is that the legal costs associated with a claim tried over 110 days will be in the millions of dollars and so the financial ramifications for Mr Roberts-Smith are likely to be severe.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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