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With more lawsuits potentially looming, should politicians be allowed to sue for defamation?

<div class="theconversation-article-body"><a href="https://theconversation.com/profiles/brendan-clift-715691">Brendan Clift</a>, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> Western Australia Senator Linda Reynolds is already <a href="https://www.theguardian.com/law/article/2024/aug/19/linda-reynolds-brittany-higgins-defamation-trial-fiona-brown-ntwnfb">embroiled</a> in a bruising defamation fight against her former staffer Brittany Higgins. Now, Opposition Leader Peter Dutton is reportedly <a href="https://www.skynews.com.au/australia-news/politics/peter-dutton-to-seek-legal-advice-after-zali-steggall-called-him-racist/video/9ce7c850f30fb1bd324831f2ec2f21b5">considering suing</a> independent MP Zali Steggall after <a href="https://www.smh.com.au/politics/federal/steggall-brands-dutton-a-bully-amid-spectre-of-legal-action-20240819-p5k3ez.html">she told him</a> to “stop being racist”. It has become impossible to miss the fact that our political class – including some who invoke freedom of speech while disparaging others – is remarkably keen on defamation litigation in response to actual or perceived slights. It’s rarely a good look when the powerful sue the less powerful. It is an especially bad look for a democracy when politicians, who enjoy not just power but privileged access to communication platforms, pursue legal avenues likely to bankrupt all but the best-resourced defendants. <h2>The freedom to speak one’s mind</h2> <a href="https://pages.eiu.com/rs/753-RIQ-438/images/Democracy-Index-2023-Final-report.pdf">Flawed democracies</a> such as Singapore are rightly <a href="https://link.springer.com/chapter/10.1007/978-981-99-5467-4_4">condemned</a> for leveraging defamation law and compliant courts against political dissent. While Australia’s situation is less problematic, our defamation laws historically favour reputation over freedom of speech. An oft-cited case in contrast is the United States, where politicians and other public figures can succeed in defamation only if they prove the publisher knew they were communicating a falsehood, or were reckless (careless to a very high degree) as to the truth. Statements of opinion – for instance, that Donald Trump is racist – are practically never in violation of the law. In the words of the <a href="https://supreme.justia.com/cases/federal/us/314/252/">US Supreme Court</a>: <blockquote> it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. </blockquote> The US approach is based on the <a href="https://supreme.justia.com/cases/federal/us/274/357/">classical liberal idea</a> that “the fitting remedy for evil counsels is good ones”: speech should generally be free, and public debate in the marketplace of ideas will sort out right and wrong. <h2>Putting conditions on free speech</h2> The argument for free speech without guardrails may be losing traction in a post-truth world. Many modern audiences, willingly or not, occupy echo chambers and filter bubbles in which biases are reinforced rather than challenged. It is almost as if the High Court of Australia foresaw this in <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1997/25.html">a 1997 defamation case</a> where it held that Australia’s Constitution did not require total freedom of political communication. Reasonable limits were appropriate because widespread irresponsible political communication could damage the political fabric of the nation. Although the High Court reached its conclusion via <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/journals/SydLawRw/2005/2.html">textual interpretation</a> of the Constitution rather than deeper philosophical musings, the court’s position reflects modern preoccupations with how speech should be regulated in a democracy. But the political appetite for defamation litigation in this country suggests the law has not yet struck the right balance. <h2>The point of defamation law</h2> <a href="https://www.smh.com.au/politics/nsw/business-owner-can-t-sue-over-one-star-google-review-judge-rules-20230124-p5cf05.html">Recent reforms</a> to defamation law have tried to eliminate frivolous lawsuits by introducing a threshold requirement of serious harm to reputation. A better approach may have been to presume that all defamation is trivial. Unlike other civil wrongs, which often result in physical injury or property damage, defamation’s effect on a person’s reputation is intangible. Unfairly tarnished reputations can usually be repaired by a public apology and correction, perhaps aided by nominal compensation for hurt feelings and to deter further defamation. It is therefore a mystery why courts and legislatures have allowed defamation proceedings to become some of the most complex and expensive civil claims around, and why damages are <a href="https://www.bbc.com/news/world-australia-48379980">so large</a>. A high-profile case can easily generate <a href="https://www.theguardian.com/australia-news/2024/apr/24/bruce-lehrmann-defamation-trial-legal-costs-channel-10-brittany-higgins-rape-allegation-ntwnfb">millions of dollars</a> in legal costs on both sides, dwarfing the final award which might itself run to hundreds of thousands of dollars. Taiwan offers a useful contrast. There, although politicians can sue for defamation, proceedings are relatively simple and damages are <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2668444">much smaller</a> – one might say proportionate to the harm done. Under both approaches, the successful litigant, whether it be the publisher or the person whose reputation has suffered, is vindicated. Surely that is the point. Where only the wealthy can afford to assert their rights, and where vindication of reputation takes a back seat to airing grievances, punishing opponents and enriching lawyers, defamation law is in a state of dysfunction. <h2>Should pollies sue?</h2> It’s sometimes said that politicians should not be able to sue for defamation at all because they themselves can say what they like under the protection of <a href="https://www.aph.gov.au/about_parliament/house_of_representatives/powers_practice_and_procedure/00_-_infosheets/infosheet_5_-_parliamentary_privilege#:%7E:text=What%20is%20parliamentary%20privilege%3F,the%20law%20of%20the%20Commonwealth.">parliamentary privilege</a>, immune from defamation and other speech laws. Parliamentarians do enjoy that protection, but its personal benefit is secondary. Parliamentary privilege, like courtroom privilege, exists because the nature of democratic (and judicial) deliberation requires that anything can be said. If a politician steps outside parliament and repeats a defamatory statement first made within its walls, they are vulnerable to being sued. <a href="https://www.abc.net.au/news/2021-03-03/sarah-hanson-young-david-leyonhjelm-defamation-appeal/13210042">David Leyonhjelm</a> learned this the hard way, and <a href="https://www.smh.com.au/politics/federal/steggall-brands-dutton-a-bully-amid-spectre-of-legal-action-20240819-p5k3ez.html">Steggall</a> may, too. It’s reasonable that politicians should also have rights of action in defamation. But those rights must be constrained according to what is appropriate in a democratic society. A way to better align defamation law with democratic expectations may be to return cases to the state courts and reinstate juries to a prominent role. Currently, the <a href="https://www.smh.com.au/national/the-death-of-juries-and-the-rise-of-blockbuster-federal-court-defamation-trials-20240125-p5ezyv.html">overwhelming majority</a> of cases are brought in the Federal Court, where they are decided by a judge sitting alone. If a public figure claims their reputation has been tarnished in the eyes of the community, we should test that factual claim with members of that community under the legal guidance of a judge. That might make for a welcome injection of common sense.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/237026/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/brendan-clift-715691">Brendan Clift</a>, Lecturer in Law, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> Image credits: Instagram This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/with-more-lawsuits-potentially-looming-should-politicians-be-allowed-to-sue-for-defamation-237026">original article</a>. </div>

Legal

Pauline Hanson responds to Robert Irwin's defamation claims

Pauline Hanson's lawyers have slammed Robert Irwin's “nonsensical”, after he <a href="https://www.oversixty.com.au/finance/legal/robert-irwin-threatens-to-sue-pauline-hanson-over-defamatory-cartoon" target="_blank" rel="noopener">threatened to take legal action</a> against the politician over the latest controversial episode of her Youtube series Please Explain. The satirical cartoon, features Irwin's misadventures with Bluey as they attempt to promote a new tourism campaign for Queensland. In the video, their car was stolen by "juvenile delinquents" before Bluey falls into a giant pothole, and then they had to wait six months for healthcare. Irwin's lawyers alleged that the cartoon was defamatory and involved the “unauthorised and deceptive use of our client’s image”, and demanded them to remove it from social media by 5pm Monday. However, the politician has ignored their threats of taking legal action, with her lawyers responding that the video was a “satirical assessment of the various failings of the Queensland State Government” and that it was not defamatory in any way. They said that the video, which referenced a recent tourism campaign Irwin was in, was “a humorous critique of that advertisement published primarily for a political purpose”. “Your clients’ claims of passing off and defamation are so plainly inconsistent as to be nonsensical," they wrote in a letter addressed to Irwin's lawyers. “It is difficult to comprehend how a viewer could understand that the video represents an affiliation with your client if he is also being defamed in the same publication.” Hanson also insisted that she would not take down the video. “I will not be removing the latest episode of Pauline Hanson’s Please Explain,” she wrote on X, formerly Twitter. “I look forward to the day when Robert and I can have a good laugh over this and turn our focus to making Queensland a better state.” Image: Instagram/ X/ Getty

Legal

Robert Irwin threatens to sue Pauline Hanson over "defamatory" cartoon

Robert Irwin has threatened to sue One Nation leader Pauline Hanson for defamation. In the latest episode of Pauline Hanson's cartoon series Please Explain, Irwin claimed that he was mocked after it depicted him and Bluey promoting a new tourism campaign for Queensland. The episode satirically depicted Irwin attempting to show Bluey the best of Queensland, but mocked the state's housing crisis, youth crime, and health care. At one point in the cartoon, the pair mistake a long queue for a rental property for a line at Movie World. FC Lawyers, who are acting on behalf of the wildlife conservationist, have sent a cease and desist letter to StepMates Studios, the production team behind Pauline Hanson’s cartoon series. In the letter obtained by NewsWire, Irwin's lawyer claimed that the cartoon is defamatory and involves the “unauthorised and deceptive use of our client’s image”. “You are potentially liable to our client in respect of defamation, deceptive use of a person’s image, passing off and misleading and deceptive conduct,” the letter sates. “We will commence legal action against you if you do not take down the video immediately.” The letter also claims that the cartoon tarnished Irwin's reputation and misled the public, causing “significant harm to our client’s brand and image”. “We are concerned that the unlawful use of our client’s image may be an attempt to pass off yourself or party as currently being affiliated or otherwise authorised by us, which you are not,” it continues. “This unlawful use has the potential to mislead or deceive consumers into believing that you have. “The use of our client’s image and name on the video is capable of leading not an insignificant number of reasonable and/or ordinary people into erroneously believing that the Pauline Hanson is associated with Robert.” Some people have defended Irwin's move, saying: "It is Pauline Hanson who is the politician and she has a record of trying to sue others when offended." "She likes to dish it out but can’t take it which will cost her at the ballot box!" "What about when Pauline Hanson threatened legal action over Pauline Pantsdown," another added. However, a few others have called him a "snowflake" and told him to "grow up". "Your dad would [have] had a good laugh at Pauline's cartoon. Grow up, stop being a snowflake!" one person wrote on X. "Robert Irwin is very thin skinned he needs a laugh," another added. Images: news.com.au/ Instagram/ Getty

Legal

Brutal cost of Bruce Lehrmann’s failed defamation case

Bruce Lehrmann has been ordered to pay the majority of Network Ten's multi-million dollar legal fees after his failed defamation case. In April, Lehrmann faced a huge loss after the Federal Court found an allegation that he raped Brittany Higgins in a Parliament House office in March 2019 was most likely true, therefore is unable to be defamed for the allegations. The 28-year-old had sued Network Ten for defamation over a February 2021 report on The Project, in which journalist Lisa Wilkinson interviewed Higgins over the rape allegation. Since the defamation case drew to a close, the parties have been in dispute over the legal costs and who should foot what is expected to amount to a sizeable legal bill for the long-running and high-profile case. On Friday afternoon, Justice Michael Lee found in favour of Ten's application for indemnity costs for most of the trial, as Lehrmann is now ordered to pay for the network's and Wilkinson's costs on an ordinary and indemnity basis, but he will not have to pay costs for some affidavits. "In the end, it comes down to the order for costs that best does overall justice in the circumstances," Lee told the court. "On balance, the appropriate exercise of discretion is to make an award that Network Ten recover its costs against Mr Lehrmann on an indemnity basis, except for costs incurred in relation to the statutory qualified privilege defence." In explaining his decision, the judge said he found Lehrmann had defended the criminal charge "on a false basis, lied to police, and then allowed that lie to go uncorrected before the jury". "He wrongly instructed his senior counsel to cross-examine a complainant of sexual assault, in two legal proceedings, including, relevantly for present purposes, this case, on a knowingly false premise," he said. Earlier in the week, the court heard Lehrmann had no financial backers and that his lawyers had agreed they did not need to be paid if he lost the case. The total amount he will have to pay will be determined at a hearing later in May. Image credits: Getty Images <p style="box-sizing: border-box; font-size: 18px; line-height: 24px; color: #333333; caret-color: #333333; font-family: 'Proxima Nova', system-ui, -apple-system, BlinkMacSystemFont, 'Segoe UI', Roboto, Oxygen, Ubuntu, Cantarell, 'Helvetica Neue', sans-serif, 'Apple Color Emoji', 'Segoe UI Emoji', 'Segoe UI Symbol';">

Legal

Judge finds Bruce Lehrmann raped Brittany Higgins and dismisses Network 10 defamation case. How did it play out?

<a href="https://theconversation.com/profiles/brendan-clift-715691">Brendan Clift</a>, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> Bruce Lehrmann has lost his defamation suit against Channel Ten and journalist Lisa Wilkinson after the media defendants proved, on the balance of probabilities, that Lehrmann raped his colleague Brittany Higgins in Parliament House in 2019. After a trial lasting around a month, Federal Court Justice Michael Lee – an experienced defamation judge – concluded that both Lehrmann and Higgins had credibility issues, but ultimately <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca0369">he was persuaded</a> that Lehrmann raped Higgins, as she’d alleged and he’d denied. <h2>Criminal trials by proxy</h2> Ordinarily, charges like rape would be resolved through the criminal courts, but Lehrmann’s criminal trial was <a href="https://www.abc.net.au/news/2022-10-27/jury-discharged-in-trial-of-bruce-lehrmann-brittany-higgins/101583486">aborted</a> in October 2022 after juror misconduct. The charges against him were soon <a href="https://www.news.com.au/national/nsw-act/courts-law/bruce-lehrmann-sexual-assault-charge-dropped-dpp-confirms/news-story/3f82dd388d2cfa38680f7d4f4ceb1c5e">dropped</a>, nominally over concerns for Higgins’ mental health. Higgins, however, foresaw civil proceedings and <a href="https://www.theguardian.com/australia-news/2023/dec/05/brittany-higgins-volunteered-to-be-defamation-trial-witness-as-she-would-not-let-rapist-become-a-millionaire-ntwnfb">offered to testify</a> should they arise. That they did, as Lehrmann, free from the burden of any proven crime, sued several media outlets for defamation over their reporting into the allegations (<a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/lehrmann">the ABC</a> and <a href="https://www.theguardian.com/australia-news/2023/dec/06/abc-agrees-to-pay-bruce-lehrmann-150000-to-settle-defamation-claim-court-documents-reveal">News Corp</a> both settled out of court). <iframe class="flourish-embed-iframe" style="width: 100%; height: 550px;" title="Interactive or visual content" src="https://flo.uri.sh/visualisation/17195035/embed" width="100%" height="400" frameborder="0" scrolling="no" sandbox="allow-same-origin allow-forms allow-scripts allow-downloads allow-popups allow-popups-to-escape-sandbox allow-top-navigation-by-user-activation"></iframe> <div style="width: 100%!; margin-top: 4px!important; text-align: right!important;"><a class="flourish-credit" href="https://public.flourish.studio/visualisation/17195035/?utm_source=embed&utm_campaign=visualisation/17195035" target="_top"><img src="https://public.flourish.studio/resources/made_with_flourish.svg" alt="Made with Flourish" /></a></div> Like Ben Roberts-Smith’s <a href="https://theconversation.com/dismissed-legal-experts-explain-the-judgment-in-the-ben-roberts-smith-defamation-case-191503">recent defamation suit</a> against the former Fairfax papers, this became another case of civil proceedings testing grave allegations in the absence of a criminal law outcome. The form of proceedings made for some key differences with the aborted criminal trial. In criminal cases, prosecutors are ethically bound to act with moderation in pursuing a conviction, which requires proof beyond a reasonable doubt, while defendants have the right to silence. By contrast, this trial featured detailed accounts from both sides as each sought to convince, in essence, that their contentions were likely to be correct. Also like the Roberts-Smith case, live streaming of the trial generated very high levels of public engagement. Today’s stream reached audiences of more than 45,000 people. It gave us the chance to assess who and what we believe, and to scrutinise the parties’ claims and the media’s reporting. The Federal Court doesn’t have juries, but we, the public, acted as a de facto panel of peers. We saw accusations and denials, revealing <a href="https://www.abc.net.au/news/2023-12-23/bruce-lehrmann-defamation-trial-network-ten-lisa-wilkinson-ends/103260752">cross-examination</a> of the protagonists, witness testimony from colleagues, CCTV footage from nightclubs to Parliament House complete with lip-reading, expert testimony on alcohol consumption and consent, and lawyers constructing timelines which supported or poked holes in competing versions of events. The complexity of high-stakes legal proceedings was on display, with Justice Lee issuing many interim decisions on questions of procedure and evidence. Whenever transparency was at stake, it won. The preference for full disclosure led to the <a href="https://www.theguardian.com/law/2024/apr/02/bruce-lehrmann-defamation-trial-network-10-fresh-evidence-bid-lisa-wilkinson-brittany-higgins-delay-ntwnfb">case being re-opened</a> at the eleventh hour to call former Channel 7 producer Taylor Auerbach as a witness, providing a denouement that the judge called “sordid”, but which had little relevance to the final result. <h2>An argument over the truth</h2> Lehrmann had the burden of proving that the defendants published matter harmful to his reputation. That matter was Wilkinson’s interview with Higgins on Channel Ten’s The Project in which the allegations were made. A statement is only defamatory if it’s untrue, but in Australian law, the publisher bears the burden of proving truth, should they opt for that defence. And more serious allegations usually require more compelling proof, as the law views them as inherently more unlikely. This can be onerous for a defamation defendant, but it also involves risk for the plaintiff, should the defendant embark on an odyssey of truth-telling yet more damaging to the plaintiff’s image. That happened to <a href="https://www.bbc.com/news/world-australia-65717684">Ben Roberts-Smith</a> and it happened to Lehrmann here. On the other hand, if the media hasn’t done their homework, as in <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1223">Heston Russell’s case</a> against the ABC (also presided over by Justice Lee), the complainant can be vindicated. This case was a manifestation of Lehrmann’s professed desire to “<a href="https://www.theguardian.com/australia-news/2023/oct/26/how-bruce-lehrmanns-media-interviews-cost-him-his-anonymity-in-toowoomba-case">light some fires</a>”. Few players in this extended saga have emerged without scars, and here he burned his own fingers, badly. As Justice Lee put it, Lehrmann, “having escaped the lion’s den [of criminal prosecution], made the mistake of coming back to get his hat”. <h2>How was the case decided?</h2> Lehrmann denied having sex with Higgins, whereas Higgins alleged there had been non-consensual sex. The defamatory nature of the publication centred on the claim of rape, so that was what the media defendants sought to prove. This left open the curious possibility that consensual sex might have taken place: if so, Lehrmann would have brought his case on a false premise (there had been no sex), but the media would have failed to defend it (by not proving a lack of consent), resulting in a Lehrmann win. That awkward scenario did not arise. The court found sex did in fact take place, Higgins in her heavily-inebriated and barely-conscious state did not give consent, and Lehrmann was so intent on his gratification that he ignored the requirement of consent. Justice Lee found Lehrmann to be a persistent, self-interested liar, whereas Higgin’s credibility issues were of lesser degree, some symptomatic of a person piecing together a part-remembered trauma. The judge drew strongly on the evidence of certain neutral parties who could testify to incidents or words spoken in close proximity to the events. <h2>Defamation laws favour the aggrieved</h2> Australian defamation law has historically favoured plaintiffs and, despite recent <a href="https://www.ruleoflaw.org.au/civil/defamation/2021-law-reform/">rebalancing attempts</a>, it remains a favoured legal weapon for those with the resources to use it. This includes our political class, who sue their critics for defamation with unhealthy frequency for a democracy. In the United States, public figures don’t have it so easy: to win they must prove their critics were lying. In Australia, the media sometimes succeeds in proving truth, but contesting defamation proceedings comes at great financial cost and takes an emotional toll on the journalists involved. Nor can a true claim always be proven to a court’s satisfaction, given the rules of evidence and the fact that sources may be reluctant to testify or protected by a reporter’s guarantee of confidentiality. But this case demonstrates that publishers with an appetite for the legal fight can come out on top.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/225891/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/brendan-clift-715691">Brendan Clift</a>, Lecturer of law, <a href="https://theconversation.com/institutions/the-university-of-melbourne-722">The University of Melbourne</a> Image credits: Getty Images This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/judge-finds-bruce-lehrmann-raped-brittany-higgins-and-dismisses-network-10-defamation-case-how-did-it-play-out-225891">original article</a>.

Legal

Lip reader provides evidence against Bruce Lehrmann

A lip-reading expert has provided key evidence in Bruce Lehrmann's defamation trial against Network Ten, revealing what he believes was said between Lehrmann and Brittany Higgins on the night of the alleged rape. British lip reader Tim Reedy, a forensic lip reader who has previously worked for The Sunday Times to translate video of Royals speaking at funerals and weddings, has been grilled after deciphering what was said between the pair at a pub in Canberra. Reedy, who became profoundly deaf as a child, claimed that Bruce Lehrmann told Brittany Higgins that several drinks on a table on the night of her alleged rape were “all hers, all hers”. He explained he was “very certain that this is what was said” and the phrases were “more than 50 per cent” accurate. Mr Lehrmann’s barrister Steve Whybrow posed a series of questions over his claim that his client had said “Drink that all now”, and that Ms Higgins had said “I don’t want to”. “What I wanted to ask you, consistent with what you say in your appendix about how you go about lip reading, you took into account the context, which included your assessment that the man was plying her with drinks, is that correct?” Mr Whybrow asked. Reedy stood by his assessment, sharing that he he had watched the video intently over a three-day period, saying he was able to use Apple technology to “fine tune” the images and had “the luxury” of going back and watching the footage repeatedly. At the conclusion of Mr Reedy’s evidence, Mr Lehrmann’s barrister Steve Whybrow argued it should not be admitted as evidence. Justice Lee disagreed with Mr Whybrow, saying: “I accept that lip reading is not perfect, but the guide for the admissibility of expert evidence is not a council of perfection. One has to take areas of specialised knowledge as one finds them.” “I do not think I should exclude the evidence. But the matters raised by Mr Whybrow are best seen through the prism of the ultimate weight to be given to the material. Accordingly I accept the tender of the material.” In the opening days of the trial, Network Ten barrister Matt Collins KC flagged flagged the lip reader's evidence, as he put to Mr Lehrmann some of the lip-reader's claims during cross examination. “You said to her ‘Drink that all now’, Dr Collins suggested. “I would just completely disagree with that,’’ Mr Lehrmann replied. “She responded, ‘I don’t want to’?” Collins asked. “I don’t recall that ever taking place, no,’’ Mr Lehrmann said. “You were encouraging Ms Higgins to get drunk,” Ten’s barrister Matthew Collins KC said during cross-examination. “No,” Lehrmann replied. Image credits: 7 Spotlight / Getty Images <div class="media image side-by-side" style="caret-color: #000000; color: #000000; font-style: normal; font-variant-caps: normal; font-weight: 400; letter-spacing: normal; orphans: auto; text-align: start; text-indent: 0px; text-transform: none; white-space: normal; widows: auto; word-spacing: 0px; -webkit-text-size-adjust: auto; -webkit-text-stroke-width: 0px; text-decoration: none; box-sizing: inherit; margin-bottom: 24px; display: flex; flex-direction: column; align-items: center; width: 705.202209px; max-width: 100%;"> </div>

Legal

"Very poor journalism": Lisa Wilkinson called out in defamation case

Lisa Wilkinson has been forced to defend the journalistic decisions of The Project, as she took to the stand as part of Bruce Lehrmann's defamation case against Wilkinson and Channel Ten. During court proceedings on Friday, Wilkinson admitted that during her bombshell report on Brittany Higgins' rape allegations, the program left out key information. The Project allegedly edited out important details about what happened in Parliament House the morning after Brittany Higgins was allegedly raped. <div data-body-element-id="zjCMXjhzxa"> In an uncut version of the episode which aired in February 2021, Wilkinson asked Ms Higgins if any security guards had asked if she was "okay" after the alleged incident. </div> <div data-body-element-id="R0B2D1Ni6K"> Ms Higgins replied, "No, no. I mean, besides one who called into the office in the morning, and said ‘Is everyone okay?’ and that was it." </div> <div data-body-element-id="2D5V5jCZaQ"> In the final cut, the words "...besides the one who called into the office in the morning" were not included. </div> <div data-body-element-id="9FH5ZgE5Ew"> Bruce Lehrmann's barrister Matthew Richardson SC quizzed Wilkinson about the edit, saying, "That's very poor journalism, isn't it?" </div> <div data-body-element-id="q0X6OvsQtG"> Wilkinson replied, "I'm disappointed to see that. It is a detail which escaped my attention." Elsewhere during the court proceedings, Wilkinson bit back at Lehrmann's lawyer for challenging her journalistic abilities. On Thursday, Wilkinson was asked why she didn't ask to see the metadata on a photo of a bruise on Brittany Higgins' thigh, which she claimed was from the alleged rape. Wilkinson told the Federal Court that she was not "tech-savvy" and did not know what metadata was, saying, "I didn't know photos had metadata." <div data-body-element-id="A9GzCf-Iqm"> Lehrmann's lawyer Mr Richardson was quick to ask in response: "You describe yourself as a serious investigative journalist?" </div> <div data-body-element-id="3eDMnH9cY0"> She bit back, stating she only refers to herself as a "journalist". </div> <div data-body-element-id="tMBlnKPjTn"> Mr Richardson said, "You were emphatic yesterday when you said you were not a tabloid journalist.' </div> <div data-body-element-id="9WzAcuceor"> She repeated: "I describe myself as a journalist, Mr Richardson." </div> <div data-body-element-id="bUfGxqx44_"> He said given she had been a journalist for 40 years, "it was most improbable that you did not know what metadata was." </div> <div data-body-element-id="QIHT-BVE1b"> She replied, "I disagree." Image credits: Getty Images </div> </div>

Legal

No apologies: Ben Roberts-Smith breaks silence

Former SAS soldier Ben Roberts-Smith has returned to Australia for the first time since losing his defamation case against Nine newspapers. Roberts-Smith touched down in Perth on June 14 and said he was shattered by the outcome of his defamation case against The Age, The Sydney Morning Herald and The Canberra Times. This is the first time he has spoken out publicly since the landmark ruling. "It was a terrible result and obviously the incorrect result. We will look at it and consider whether or not we need to file an appeal," Roberts-Smith said after landing in Perth. "There is not much more I can say about it ... we just have to work through it and I'll take the advice as it comes.” He was spotted checking into business class with his girlfriend in Queenstown, New Zealand prior to touching down in Perth. Roberts-Smith rules out apologising to families of the victims impacted by his actions in Afghanistan. "We haven't done anything wrong, so we won't be making any apologies," he said. As he was collecting his luggage at Perth airport, he was approached by a man who voiced his support for the former soldier. Roberts-Smith's return comes on the same day as reports that an Australian Federal Police investigation into his alleged war crimes had collapsed. The decision by the Commonwealth Director of Public Prosecutions not to prosecute Roberts-Smith based on evidence collected by the AFP has led to a new joint task force being assembled to investigate alleged executions. The task force is comprised of detectives from the specialist war crimes agency, the Office of the Special Investigator and a new team of federal police investigators not related to the abandoned AFP probe. Roberts-Smith did not appear in the Federal Court when a judge found allegations he murdered or was complicit in the killing of four unarmed Afghans while deployed overseas were "substantially true” in a bombshell defamation ruling. The former soldier insists there was never any foul play. Image credit: A Current Affair

News

Father of murdered Aussie soldier voices support for Ben Roberts-Smith

The father of an Australian soldier murdered in Afghanistan has spoken out in defence of former SAS member Ben Roberts-Smith. Hugh Poate’s son, Robert, was playing cards with two other Australians when they were tragically shot by a rogue Afghan soldier named Hekmatullah in 2012. According to Poate, Roberts-Smith was simply following orders in a bid to apprehend Hekmatullah, who had brutally taken the lives of their son. Acting on intelligence, they were taken to the village of Darwan, where Roberts-Smith had allegedly kicked a farmer named Ali Jan off a cliff and ordered his execution. “These citizens in the village could well have been a civilian one day and pulling the trigger the next, that‘s the way the Taliban operated. This perspective should have been included to provide some balance and context,” Poate told the Daily Telegraph. The federal court <a href="https://www.oversixty.com.au/finance/legal/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law" target="_blank" rel="noopener">dismissed</a> Roberts-Smith’s defamation trial against the Sydney Morning Herald, The Age, and the Canberra Times, with Justice Besanko concluding the various titles had substantially proven the former soldier unlawfully killed four unarmed Afghan prisoners during his service in the SAS between 2009 and 2012. The judgement also acknowledged instances of Roberts-Smith’s alleged bullying of fellow soldiers. However, the court dismissed two other murder allegations and an accusation that he had assaulted his mistress. In his thorough 736-page judgement, the judge determined that Roberts-Smith and four key witnesses called to testify were both dishonest and unreliable in their evidence. Following the release of the completed judgement, Roberts-Smith’s legal team is now closely inspecting the document to identify potential grounds for an appeal. Poate emphasised the fact that Hekmatullah was captured and convicted of war crimes and subsequently released. In comparison, Roberts-Smith <a href="https://www.oversixty.com.au/news/news/australian-war-memorial-urged-to-remove-ben-roberts-smith-s-uniform-from-display" target="_blank" rel="noopener">has not been convicted</a> of any war crimes. Potae perceives the treatment of Roberts-Smith as a case of double standards. Additionally, Poate asserted that the responsibility for any wrongdoing committed by the SAS in Afghanistan lies with others in the Australian Defence Force (ADF). By acknowledging the collective accountability within the organisation, Poate has suggested a wider perspective on the matter. Image credit: Getty

Legal

What should the Australian War Memorial do with its heroic portraits of Ben Roberts-Smith?

<a href="https://theconversation.com/profiles/kit-messham-muir-129956">Kit Messham-Muir</a>, <a href="https://theconversation.com/institutions/curtin-university-873">Curtin University</a> On Friday, the <a href="https://theconversation.com/dismissed-legal-experts-explain-the-judgment-in-the-ben-roberts-smith-defamation-case-191503">Federal Court dismissed</a> Ben Roberts-Smith’s defamation case against The Age, The Sydney Morning Herald and The Canberra Times. Justice Anthony Besanko ruled the newspapers had established, by the “balance of probabilities” (the standard of evidence in a civil lawsuit), that Roberts-Smith had committed war crimes. Following the ruling, much public debate has focused on what the Australian War Memorial should do with Robert-Smith’s uniform, helmet and other artefacts of his on display. Greens senator David Shoebridge <a href="https://twitter.com/DavidShoebridge/status/1664140665666826240">called for</a> the removal of these objects from public display to correct the official record and “to begin telling the entire truth of Australia’s involvement in that brutal war.” The topic of what to do with Roberts-Smith’s uniform and helmet was debated on <a href="https://www.youtube.com/watch?v=sH1oVNVJP1k">ABC’s Insiders yesterday</a>: should the display be removed, effectively cancelled, or changed to tell the full story? <h2>The case of the oil paintings</h2> It is not just these artefacts on display. The memorial also has two heroic oil painting portraits of Roberts-Smith by one of Australia’s leading artists, <a href="http://www.michaelzavros.com/">Michael Zavros</a>. These paintings were commissioned by the memorial in 2014. <figure class="align-center zoomable"><a href="https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img src="https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=448&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=448&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=448&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=563&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=563&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529980/original/file-20230605-16883-qhpzvv.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=563&fit=crop&dpr=3 2262w" alt="" /></a><figcaption>Michael Zavros, Pistol grip (Ben Roberts-Smith VC), 2014, oil on canvas, 162 cm x 222 cm. <a class="source" href="https://www.awm.gov.au/collection/C2092390">© Australian War Memorial</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></figcaption></figure> <a href="https://www.awm.gov.au/collection/C2092390">Pistol Grip (Ben Roberts-Smith VC)</a> is a larger-than-life-sized depiction of Roberts-Smith, camouflage arms outstretched, mimicking the action of holding a pistol. The smaller <a href="https://www.awm.gov.au/collection/C2092391">Ben Roberts-Smith VC</a> depicts him in ceremonial military uniform. <figure class="align-center zoomable"><a href="https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img src="https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=442&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=442&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=442&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=555&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=555&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529982/original/file-20230605-23-pgn7xe.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=555&fit=crop&dpr=3 2262w" alt="" /></a><figcaption>Michael Zavros, Ben Roberts-Smith VC, 2014, oil on canvas, 30 x 42 cm. <a class="source" href="https://www.awm.gov.au/collection/C2092391">© Australian War Memorial</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc/4.0/">CC BY-NC</a></figcaption></figure> In an <a href="https://memoreview.net/reviews/the-anti-art-of-war-by-rex-butler-and-paris-lettau">article in arts criticism website Memo</a> yesterday, respected Monash University art historian Rex Butler and arts journalist Paris Lettau weighed into the debate. Butler and Lettau say Pistol Grip is: <blockquote> threatening, over-bearing, macho, hyper-masculine, celebratory, and enormous, like the man himself – some 220 centimetres wide and 160 centimetres high. </blockquote> When Zavros created his large portrait it was a depiction of a soldier doing what he was trained – and venerated – for doing. It is an aggressive pose that, given current developments, can be read in a much more sinister way. It touches on a far bigger question of how national institutions for the public memory of war address difficult and morally ambiguous moments in a national story. <h2>Moral and ethical ambiguity</h2> When the Canadian War Museum opened at its new site in Ottawa in 2005, its new displays included two paintings in their collection by Canadian artist <a href="https://www.theglobeandmail.com/opinion/article-in-her-powerful-portraiture-military-artist-gertrude-kearns-pays/">Gertrude Kearns</a>. The paintings, Somalia without Conscience, 1996, and The Dilemma of Kyle Brown: Paradox in the Beyond, 1995, dealt with one of the most shameful episodes in Canada’s military history, known as the <a href="https://en.wikipedia.org/wiki/Somalia_affair">Somalia Affair</a>. In 1992, the Canadian Airborne Regiment was deployed as peacekeepers to Somalia. In 1993, 16-year-old Shidane Arone was found hiding in the Canadian base, believed to have been stealing supplies. He was tortured, and soldiers photographed themselves with the semi-conscious boy. Master Corporal Clayton Matchee and his subordinate Private Kyle Brown <a href="https://www.vice.com/en/article/7x75xg/remembering-the-somalia-affair-canadas-forgotten-abu-ghraib-moment">were charged</a> with his murder and torture. Somalia without Conscience depicts Matchee posing with the beaten Arone, while The Dilemma of Kyle Brown depicts Brown symbolically holding two potential fates in his hands: a lightly coloured cube in his right hand, and a darkened cube in his left. It addresses an ethical grey area many soldiers face during active service when the hierarchy of command comes into direct conflict with conscience. Following the opening of the new Canadian War Museum, the presence of Kearns’s paintings sparked <a href="https://books.google.com.au/books?id=nltxDwAAQBAJ&pg=PT519&lpg=PT519&dq=%E2%80%9Cwas+not+only+telling+the+stories+of+heroism+and+courage+that+most+of+them+expected+to+be+told+but+also+stories+about+failures,+disappointments,+and+human+frailty%E2%80%9D&source=bl&ots=sfQZw_2qXL&sig=ACfU3U18i4X0ERdbg0wfOKXbnOIe1-5-pA&hl=en&sa=X&ved=2ahUKEwjXw6Sdk6v_AhXGVmwGHbRwDh0Q6AF6BAgJEAM#v=onepage&q=%E2%80%9Cwas%20not%20only%20telling%20the%20stories%20of%20heroism%20and%20courage%20that%20most%20of%20them%20expected%20to%20be%20told%20but%20also%20stories%20about%20failures%2C%20disappointments%2C%20and%20human%20frailty%E2%80%9D&f=false">intense debate</a>. Curator Laura Brandon received abusive emails from members of the public. <figure class="align-center zoomable"><a href="https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img src="https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px" srcset="https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/529986/original/file-20230605-23-vgma1q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" alt="" /></a><figcaption>The Canadian War Museum in Ottawa. Shutterstock</figcaption></figure> The museum copped criticism from figures such as the head of the National Council of Veterans Associations, who <a href="https://www.cbc.ca/news/canada/ottawa/war-museum-s-paintings-anger-veterans-group-1.546113">called</a> the paintings a “trashy, insulting tribute” and urged a boycott of the opening of the new museum. Discussing this controversy in 2007, <a href="https://journals.sagepub.com/doi/abs/10.1177/1354856507072860?journalCode=cona">Brandon said</a> what upset veteran communities was that “their” museum: <blockquote> was not only telling the stories of heroism and courage that most of them expected to be told but also stories about failures, disappointments, and human frailty. </blockquote> Brandon remained steadfast the museum needed to address the messy ambiguities of war and, despite pressure, kept Kearns’s paintings on display for the duration of the exhibition. <h2>The complexity of contemporary art</h2> Brandon’s curatorial decision to display Kearns’s Somalia paintings strike at the heart of what is special and important about contemporary war art in a national museum. Contemporary art presents ethical and moral complexity, grey zones and a range of perspectives. This is vital in a healthy liberal democracy. While Brandon’s choice to show Kearns’s Somalia paintings attracted criticism, the museum remained committed to telling a story that is difficult, ethically and morally complex, and uncomfortable for Canadians. To remove Zavros’ portraits from display would remove the now-untenable hero narrative that once surrounded Roberts-Smith. But doing so would also rewrite public memory by effectively erasing an important part of why and how Roberts-Smith was revered. These portraits now represent a morally complex story that needs to be addressed by our national war museum. To remove the portraits would miss a valuable opportunity to debate important questions about how we construct hero stories. So, how could these portraits still be shown in future? Zavros’ portraits were already complex works. Following Friday’s announcement, it is more important they are seen in all their additional multi-layered and problematic complexity. The portraits show us how we create the nation through the stories we tell ourselves, and how dynamic that narrative can be. The portraits present a valuable opportunity to show narratives of war – like the stories of our own lives – are never simple, consistent and coherent. The portraits should be displayed in ways that address this complexity, capturing the evolving story of Roberts-Smith in explanatory wall text. There is an opportunity here to not simply “correct” the official record, as Shoebridge suggests, but to have a deeper conversation about the role of hero narratives in diverting attention away from more important public debates about Australia’s involvements in conflicts. Maybe this could be addressed in the art the memorial commissions in future. The most compelling contemporary art works – and the most valuable museum displays in our national institutions – are those that consider our complex stories, raise important and self-reflective questions, and challenge simplistic narratives. <img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/206934/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> Image credit: Getty <a href="https://theconversation.com/profiles/kit-messham-muir-129956">Kit Messham-Muir</a>, Professor in Art, <a href="https://theconversation.com/institutions/curtin-university-873">Curtin University</a> This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/what-should-the-australian-war-memorial-do-with-its-heroic-portraits-of-ben-roberts-smith-206934">original article</a>.

Legal

Ben Roberts-Smith’s furious phone call to fellow soldier

A livid Ben Roberts-Smith has berated a fellow soldier he believed had been speaking to the media about war allegations, demanding he “stick to the f**king code”, newly released audio has revealed. Nine’s 60 Minutes played a recording of the exchange between Roberts-Smith and a fellow SAS member known as “Soldier M” in 2018 amid a media frenzy. Soldier M is a relative of Australia’s most wealthy individual, billionaire Gina Rineheart, and prior to the phone call, Roberts-Smith had sent him a threatening legal letter, with the mining magnate CC’d in. “Yeah, it’s RS, mate,” Mr Roberts-Smith says in the audio. “Because I know you’ve talked s**t about me, right? I know that. “I’ve got no ill will towards anyone that has no ill will towards me, it’s real simple. So you know, like, I’m 100 per cent, I stick to the f**king code, mate, 100 per cent, and I have. So all the s**t that’s going on, I’m still probably the only c**t that hasn’t f**king spoken. “I don’t trust you, mate, I haven’t been able to trust you for a long time. You say we’re mates. We used to be actually, but for some f**king reason I’ve just become the centre of all evil for you and the group of people … “You’ve got a young child, I’ve got a f**king family, I want to move on, I’m so sick of f**king army, the unit and all the bulls**t. Just remember I was minding my own business, just trying to do my job, and I get attacked by all these f**king journalists. I haven’t spoken a word about it to anyone in the unit.” On June 1 Roberts-smith lost his lengthy defamation trial against Nine newspapers’ The Sydney Morning Herald, The Age and The Canberra Times. Following the verdict, The Australian War Memorial has faced calls to <a href="https://www.oversixty.com.au/news/news/australian-war-memorial-urged-to-remove-ben-roberts-smith-s-uniform-from-display" target="_blank" rel="noopener">remove the decorated soldier’s uniform</a> from its display. The 22-week trial saw 32 current and former SAS members provide evidence. One of the 32, known as “Person Y”, who has never spoken to the media, appeared anonymously on 60 Minutes on June 4. “You don’t win insurgencies on body counts, yet here is a guy who thinks he’s going to win the war by killing as many people as possible,” he told the program. “We are not above the law, we are not above the rules of engagement, but I think for him he felt he was above all that, that the rules don’t apply. Many people are having a hard time reconciling the fact that someone they thought was a national hero is in fact the complete opposite, proven to be a bully, a liar and a murderer. “It’s a tough pill to swallow, especially for a country that’s believed the lies for so long. “I think they thought they were above the law, that they were not going to be caught, that it was a free-for-all. “I think I could say on behalf of every guy who took the witness stand that none of us wanted to be there, that’s just not who we are.” One day after the verdict was reached, Seven CEO James Warburton revealed Roberts-Smith had resigned from the network. “We thank Ben for his commitment to Seven and wish him all the best,” he said. Image credit: Getty

Legal

A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?

<a href="https://theconversation.com/profiles/david-rolph-118815">David Rolph</a>, <a href="https://theconversation.com/institutions/university-of-sydney-841">University of Sydney</a> At the heart of the spectacular defamation trial brought by decorated Australian soldier Ben Roberts-Smith were two key questions. Had the Age, the Sydney Morning Herald and the Canberra Times damaged his reputation when they published in 2018 a series of explosive stories accusing him of murder and other crimes while in Afghanistan? And could the newspapers successfully defend their reporting as true? Today, in Sydney, Federal Court Justice Anthony Besanko found the newspapers were indeed able to establish the “substantial truth” of key allegations around killing of unarmed Afghan male prisoners. An <a href="https://twitter.com/Kate_McClymont/status/1664130451869663232">appeal</a> may still be on the cards, but this is a high-profile loss for a very prominent person. The costs will be substantial. The usual rule is that the losing party pays their own costs and those of the winning party. So, even though people say defamation law in Australia has a reputation for favouring plaintiffs, this case shows even plaintiffs do sometimes lose defamation cases in Australia. More broadly, this case shows how hard it is to use defamation law to repair any perceived damage to your reputation. Once a case begins, you never can control what will be said in court. <h2>What was this case about?</h2> The case centred on several defamatory meanings (or, as they’re known in defamation law, “<a href="https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/ben-roberts-smith">imputations</a>”) that Roberts-Smith said the papers had made against him. Among these were that he’d <a href="https://www.theage.com.au/national/110-days-41-witnesses-and-15-key-questions-to-answer-what-the-ben-roberts-smith-case-was-about-20230209-p5cjdp.html">killed</a> unarmed Afghan male prisoners and ordered junior soldiers to execute others in Afghanistan between 2006 and 2012. Roberts-Smith denied wrongdoing, but the newspapers had pleaded a defence of truth. That means to win this case, they needed to prove the meanings conveyed by their reporting – even if those meanings were unintended – were true. Besanko, reading a summary judgment today, said the newspapers were able to establish the substantial truth of some of the most serious imputations in the case. For other imputations, Besanko found the newspapers were able to establish “contextual truth”. Substantial truth means what is sounds like – that the allegation published was, in substance, true. Defamation law does not require strict, complete or absolute accuracy. Minor or inconsequential errors of detail are irrelevant. What matters is: has the publisher established what they published was, in substance, true? Contextual truth is a fallback defence. The court has to weigh what has been found to be true against what has been found to be unproven. If the true statements about the plaintiff were worse than the unproven statements, then the plaintiff’s reputation was not overall damaged by the unproven statements, and the publisher has a complete defence. In other words, Besanko found most of the imputations to be true. And, when considered against those which were not proven to be true, the remaining unproven imputations did not damage Roberts-Smith’s reputation. <h2>What does this case tell us about defamation in Australia?</h2> The court heard several explosive claims during the course of this trial, including that evidence on USB sticks had been put into a <a href="https://www.theguardian.com/australia-news/2021/aug/13/court-hears-ben-roberts-smiths-ex-wife-dug-up-usb-sticks-from-family-backyard">lunchbox and buried</a> in a backyard and that Roberts-Smith had allegedly <a href="https://www.theguardian.com/australia-news/2022/may/13/woman-who-says-ben-roberts-smith-punched-her-sustained-an-injury-in-a-fall-earlier-on-same-night-defamation-trial-hears">punched a woman</a> in their hotel room. Roberts-Smith said he didn’t bury the USBs or withhold information from a war crimes inquiry and denied that he had punched the woman. But the fact this widely scrutinised case yielded such astonishing testimony, day in and day out, shows how risky it is to use defamation law to restore perceived injury to one’s reputation. Defamation law is seeking to correct people’s views about the plaintiff. But it’s open to doubt that defamation law is actually any good at securing its own stated purpose of changing people’s minds about the plaintiff. The problem is the law is a very blunt instrument. It’s very hard to get people to change their minds about what they think of you. All litigation involves risk and defamation trials are even riskier. You never can control what can come out in court, as this litigation demonstrates so clearly. Roberts-Smith has sued to protect his reputation, but in doing so, a range of adverse things have been said in court. And whatever is said in court is covered by the defence of absolute privilege; you can’t sue for defamation for anything said in court that is reported accurately and fairly. <h2>The 2021 defamation law reforms</h2> The law that applies in the Roberts-Smith case is the defamation law we had before major reforms introduced in July 2021 across most of Australia. These reforms introduced a new defence known as the public interest defence. To use this defence, a publisher has to demonstrate that they reasonably believed the matter covered in their published material is in the public interest. As this defence didn’t exist prior to 2021, the publishers in the Roberts-Smith case used the defence of truth. If a case like this were litigated today following these reforms, it is highly likely the publisher would use the new public interest defence. Given the <a href="https://theconversation.com/lachlan-murdoch-could-well-have-won-his-crikey-lawsuit-so-why-did-he-drop-it-204279">Murdoch versus Crikey</a> case was settled, we may yet wait some time to see what’s required to satisfy the public interest test in a defamation case. But as today’s decision demonstrates, sometimes the truth alone will prevail.<img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/206759/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /> <a href="https://theconversation.com/profiles/david-rolph-118815">David Rolph</a>, Professor of Law, <a href="https://theconversation.com/institutions/university-of-sydney-841">University of Sydney</a> This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/a-win-for-the-press-a-big-loss-for-ben-roberts-smith-what-does-this-judgment-tell-us-about-defamation-law-206759">original article</a>. Images: Getty

Legal

Australian War Memorial urged to remove Ben Roberts-Smith’s uniform from display

The Australian War Memorial is being urged to remove Ben Roberts-Smith’s uniform from its display after the federal court dismissed the defamation case initiated by Australia’s most decorated living soldier. However, the Australian Special Air Association has argued it was “a very disappointing day” for veterans who had served in Afghanistan, noting the majority who had done the right thing were being “re-traumatised after having gone through a difficult war”. In the defamation case ruling on June 1, Justice Anthony Besanko found that, on the balance of probabilities, Roberts-smith kicked a handcuffed prisoner off a cliff in Darwin in 2012 before ordering a subordinate Australian soldier to shoot the injured man dead. Besanko also found that in 2009, Roberts-Smith had ordered the execution of an elderly man found hiding in a tunnel in a bombed-out compound codenamed “Whiskey 108”, including murdering a disabled man with a prosthetic leg during that same mission, with a machine gun. The majority of politicians in Canberra were hesitant to weigh in on the implications of the ruling, but the Greens described the judgement as “an important win for fearless journalism in the public interest”. David Shoebridge, the Greens’ defence and justice spokesperson said, “If this judgment stands, the first step in correcting the official record is for the Australian War Memorial to immediately remove Ben Roberts-Smith’s uniform from public display and to begin telling the entire truth of Australia’s involvement in that brutal war. “This is not justice for the families who lost loved ones or for the communities that have been brutalised by war crimes, but it takes us a step closer.” Shoebridge is also calling on the Albanese government to “urgently progress compensation for families of victims of alleged Afghanistan war crimes, one of the key outstanding recommendations of the Brereton report”. He has urged the attorney general, Mark Dreyfus, to “step in and end the unjust prosecution of Afghanistan war crimes whistleblower David McBride”. A spokesperson for the defence minister, Richard Marles, said, “This is a civil defamation matter to which the commonwealth is not a party and it would be inappropriate to provide comment.” Speaking to ABC TV, the national chairman of the Australian Special Air Service Association, Martin Hamilton-Smith downplayed the broader significance of the ruling, saying it was not a criminal proceeding. When speaking generally about investigations overseen by the Office of Special Investigator (OSI), he said one person had been charged to date over allegations of war crimes in Afghanistan — and raised concerns that “justice delayed is justice denied”. Hamilton-Smith called on OSI to “get these matters into a criminal court where they can be dealt with properly and the truth can be established”. In 2020, the Brereton report found “credible” information to implicate 25 current or former special forces personnel in the alleged unlawful killing of 39 individuals and the cruel treatment of two others. When asked whether Roberts-Smith should hand over his Victoria Cross, Hamilton-Smith said, “I think the only way you will get the real truth of this is to get it into the criminal court where both sides of the story can be told and beyond reasonable doubt the facts established.” A spokesperson for OSI said defamation proceedings were a “a civil matter between the parties”, adding, “It would not be appropriate to comment on specific allegations or whether they are the subject of investigation.” The Coalition’s foreign affairs spokesperson, Simon Birmingham, described the defamation ruling as “certainly significant”, and stated it was a legal process “that deserves to be respected”. However, he said it would be “a difficult day for many” of Australia’s current and former defence force personnel. “Australia is a country that applies a standard, in terms of expectations of our serving personnel and the transparency and accountability, that few other nations in the world apply,” Birmingham told ABC TV. “We should be proud of those standards but we should also be proud overwhelmingly of our personnel, of all who have served.” Birmingham was reluctant to make broader comments about the judgement’s implication for press freedom, adding the outcome would “obviously weigh heavily in terms of what proceedings may be initiated by others in future”. The shadow defence minister and former SAS captain Andrew Hastie was subpoenaed by the newspapers to give evidence during the defamation case but declined to comment. Image credit: Getty

News

Mark Latham sued over homophobic tweet

Mark Latham is being sued by New South Wales independent MP Alex Greenwich, after he failed to apologise for a "disgusting" homophobic tweet. Greenwich said he will initiate defamation proceedings against the One Nation NSW leader in the coming days, after he gave Latham until Thursday May 18th to issue an apology for the tweet against the openly gay member for Sydney. Greenwich confirmed the legal action would proceed after being by Latham's lawyers that he had no intention of apologising. <a href="https://oversixty.com.au/news/news/mark-latham-under-fire-over-disgusting-homophobic-tweet" target="_blank" rel="noopener">Latham's tweet</a> made headlines in March, after the politicians became engaged in a war of words over Twitter when discussing <span style="caret-color: #212529; color: #212529; font-family: abcsans, -apple-system, BlinkMacSystemFont, 'Segoe UI', Roboto, 'Helvetica Neue', Arial, sans-serif; font-size: 16px; background-color: #ffffff;">the violent protest at St Michael's Church in Sydney's west, which saw members of the LGBTQIA+ community be attacked by religious extremists. <p class="_39n3n" style="font-size: 16px; box-sizing: border-box; margin-top: 0px; margin-bottom: 1rem; caret-color: #212529; color: #212529; font-family: abcsans, -apple-system, BlinkMacSystemFont, 'Segoe UI', Roboto, 'Helvetica Neue', Arial, sans-serif;">More than a dozen LGBTQIA+ protesters were ambushed by hundreds of men outside an event at the church where Mr Latham spoke about parental rights and religious freedom. <p class="_39n3n" style="font-size: 16px; box-sizing: border-box; margin-top: 0px; margin-bottom: 1rem; caret-color: #212529; color: #212529; font-family: abcsans, -apple-system, BlinkMacSystemFont, 'Segoe UI', Roboto, 'Helvetica Neue', Arial, sans-serif;">In an article Mr Greenwich called Mr Latham a "disgusting human being" who risks causing a "great deal of damage to our state". <p class="_39n3n" style="font-size: 16px; box-sizing: border-box; margin-top: 0px; margin-bottom: 1rem; caret-color: #212529; color: #212529; font-family: abcsans, -apple-system, BlinkMacSystemFont, 'Segoe UI', Roboto, 'Helvetica Neue', Arial, sans-serif;">Latham was quick to respond on Twitter, saying "That's disgusting?" What about..." followed by a graphic and homophobic comment that OverSixty has chosen not to publish. Greenwich said his decision to take legal action against Latham was something that required much consideration, but something he feels he must do. "This is not a process I enter into lightly, and a process I wish I didn't have to engage in," Greenwich said in a statement. "However, Mr Latham's homophobic, sexualised attack has exposed me to contempt, ridicule and extreme abuse, based on my sexuality, and demands actions." Greenwich has lodged a complaint of homosexual vilification and sexual harassment against Latham with Anti-Discrimination NSW. He has also made a police complaint against Latham for using a carriage service to menace, harass and offend. "It's 2023 and LGBTQIA+ Australians shouldn't have to put up with abuse that targets our sexuality, character, or ability to do our jobs," Greenwich said. Image credits: Getty Images

Legal

Pauline Hanson to pay hefty price for defamation

Content warning: This article mentions sexual assault and harassment. Pauline Hanson has been ordered to pay $250,000 in damages to former One Nation senator Brian Burston after she falsely claimed he sexually abused a female staffer in his parliamentary office. The One Nation leader was ordered to pay the penalties by Justice Robert Bromwich on Wednesday for claims she made on the Nine Network. Along with accusations of sexual abuse, Hanson also claimed Burston had assaulted One Nation chief of staff James Ashby without provocation in the Great Hall of Parliament, which Justice said were both “seriously damaging” to Burston’s reputation. "I find that both (imputations) were seriously damaging to Mr Burston's reputation, being broadcast on a nationally broadcast television program watched by over 290,000 people at the time," Justice Bromwich said. “They were both false.” However, Burston failed to prove a number of other claims were defamatory, including imputations that he sexually harassed staff in his office, including a female staffer, and that he brought the senate into disrepute due to his behaviour towards staff. Justice Bromwich described Burston’s behaviour as “objectively wrong and inappropriate” and said he hadn’t “kept up with changes in society” in relation to women’s rights. "Mr Burston had apparently not kept up with changes in society in relation to the rights of women, with the tide having turned even more decisively in recent years, most particularly in relation to the conduct of and around elected representatives and their staff," he wrote. Burston launched the defamation suit in June 2020 over what he said were false claims of sexual harassment made on social media, television, and via text that painted him as a sexual harrasser. He has repeatedly denied the allegations of misconduct. Hanson filed a counter suit in November 2020, claiming Burston’s case and allegations made against her of sexual harassment amounted to sexual discrimination. During a seven-day hearing in June, the court heard from two of Burston’s colleagues who gave evidence of alleged harassment. Terri-Lea Vairy said Burston had regularly degraded, humiliated and disgusted her with acts of sexual harassment, including shoving $100 between her breasts. Fellow employee Wendy Leach said she was unfairly dismissed after telling Burston to stop his infatuation with Ms Vairy, and spoke of an incident where Burston allegedly offered her “a good f**k”. "I am in no doubt that Ms Vairy suffered continued harassment from Mr Burston during her employment, predominantly of a sexual nature. Nor am I in any doubt that Mr Burston sexually propositioned Ms Leach," Justice Bromwich wrote. The court also heard that Burston smeared blood from his hand on Hanson’s door “like some hex”. Burston left One Nation to join the United Australia Party in June 2018 after a fall-out with colleagues over his stance on proposed tax cuts from then-prime minister Malcolm Turnbull. In the 2019 federal election, Burston failed to keep his seat. Images: Facebook

Legal

Erin Molan awarded hefty payout from defamation case win

Erin Molan has won her defamation case against Daily Mail Australia, after a Federal Court found the online newspaper defamed her by alleging she was racist in an article. The sports journalist sued the Daily Mail for defamation last year, saying an article and two tweets by the news site falsely portrayed her as racist because of her mispronunciation of Polynesian names. In the verdict, Justice Robert Bromwich found both sides had both a “measure of success and a measure of failure”, as he found both Erin and the publication made mistakes. Daily Mail Australia must pay the Sky News host $150,000 plus interest in damages, including aggravated damages for the online article. Justice Bromwich said the sum was “substantial” for “closely interrelated and unwarranted online slurs, sufficient for any ordinary person to be well and truly satisfied that they were untrue and should never have been published”. “I consider this sufficiently meets the sting of the article as reflected in the imputations,” he said. “Dailymail.com needs to substantially improve the care that it takes, or face further and greater awards of damages. Freedom of expression must be balanced with responsibility and basic professionalism which was sadly lacking in this case.” The Mail’s story was based on Molan saying “hooka looka mooka hooka fooka” when referring to a Polynesian sportsperson on the show in May 2020. During the trial, the publisher argued the imputations carried were true – and Molan had demonstrated a “pattern” of racist comments in her time at 2GB’s Continuous Call Team program. Justice Bromwich is allowing Molan to be heard on an injunction to take down the Daily Mail article, which was the basis of the defamation case, if it had not already been removed. He said the Daily Mail should “sensibly and promptly” take down the article if it had not already done so. Image credits: Getty Images

Legal

Murdoch v Crikey highlights how Australia’s defamation laws protect the rich and powerful

There is no better example of how Australia’s defamation laws enable the rich and powerful to intimidate their critics than Lachlan Murdoch suing Crikey.com over a comment piece concerning Fox News, Donald Trump and the Washington insurrection of January 6 2021. Crikey says it has <a href="https://www.crikey.com.au/2022/08/22/lachlan-murdoch-letters-crikey-why/" target="_blank" rel="noopener">published the correspondence</a> between its lawyers and Murdoch’s in order to show how media power is abused in Australia. The correspondence begins with a “concerns notice” Murdoch sent to Crikey, which is the essential first step in launching an action for defamation. In it, Murdoch claims that the <a href="https://www.crikey.com.au/2022/06/29/january-six-hearing-donald-trump-comfirmed-unhinged-traitor/" target="_blank" rel="noopener">Crikey commentary</a> by Bernard Keane, published on June 29 2022, conveyed 14 meanings that were defamatory of Murdoch. <h2>Murdoch’s allegation and Crikey’s defence</h2> According to Murdoch’s claims, Keane’s piece alleges that Lachlan Murdoch illegally conspired with Donald Trump to overturn the 2020 US presidential election result and incite an armed mob to march on the Capitol to prevent the result from being confirmed. Crikey has responded by disputing that these meanings are conveyed, saying they are “contrived and do not arise”. Crikey also argues that whatever it published could not possibly have done serious harm to Lachlan Murdoch’s reputation. In order to get an action for defamation off the ground, Murdoch, the plaintiff in this case, has to satisfy the court that serious reputational harm has been done. The court may well decide this is the case. Crikey says that given what much bigger media companies such as the Washington Post, the New York Times and the ABC (American Broadcasting Company) have already published about Murdoch’s Fox News and its propagation of the “Big Lie” that the 2020 presidential election had been stolen, what Crikey has published cannot further harm Murdoch’s reputation. <h2>US vs Australian defamation protections</h2> This brings us to the first way Australia’s defamation laws facilitate intimidatory action by the rich and powerful. Since those two big American newspapers have published similar material to that published by Crikey, the question naturally arises: why has Lachlan Murdoch not sued them? The answer is that in the United States, there is a “public figure” defence to defamation. In the US, Lachlan Murdoch would easily qualify as a public figure, being executive chairman and CEO of Fox Corporation. If he sued there, he would have to prove malice on the part of the newspapers. That means he would have to prove that the newspapers lied or were recklessly indifferent to the truth. No such defence is available to the media in Australia, despite decades of intermittent campaigning by the media that it is needed. The reasons these efforts have gone nowhere are twofold. First, Australian politicians are among the most avid users of defamation laws, and it would be unrealistic to expect they would change this convenient state of affairs. This has been illustrated recently by the <a href="https://www.theguardian.com/australia-news/2021/nov/05/friendlyjordies-%20defamation-case-jordan-shanks-apologises-to-john-barilaro-to-settle-claim" target="_blank" rel="noopener">successful defamation action</a> taken by the former deputy premier of NSW, John Barilaro, against an online satirist, Jordan Shanks, aka friendlyjordies. Second, the tradition of accountability in public life is weak in Australia and the tradition of secrecy is strong, as vividly demonstrated by Scott Morrison’s behaviour in the affair of the <a href="https://www.theguardian.com/australia-news/2022/aug/16/scott-morrison-five-more-secret-ministries-minister-portfolio-ministry-including-treasury-home-affairs" target="_blank" rel="noopener">multiple portfolios</a>. Another major factor in the chilling effect that the Australian defamation laws exert on the media is the extravagant damages the courts have awarded to plaintiffs that sue media companies, as well as the high cost of litigation. This has caused large media companies to settle cases even when they had an arguable prospect of defending themselves. A recent example was when the biography of the AFL player Eddie Betts was published, confirming what had happened at the now notorious training camp held by the Adelaide Crows in 2018. At the camp, Betts alleged he was targeted, abused and the camp “<a href="https://www.abc.net.au/news/2022-08-02/eddie-betts-autobiography-adelaide-crows-training-camp/101294046#:%7E:text=Former%20Adelaide%20star%20Eddie%20Betts,from%20the%20club's%20leadership%20group" target="_blank" rel="noopener">misused personal and sensitive information</a>.” However, when The Age broke the story initially, it was sued by the company that ran the camp. The newspaper <a href="https://www.theage.com.au/sport/afl/afl-players-betrayed-by-a-win-at-all-costs-culture-%2020220804-p5b78a.html" target="_blank" rel="noopener">issued an apology</a>, although it did not admit the story was wrong. The Age said its parent company, Nine Entertainment, had made a “business decision” to settle the case. In other words, it did not want to risk the costs and damages involved in contesting the suit. <h2>Liabilities for online publication</h2> A third main factor is the failure of the Morrison administration to bring to finality stage two of the defamation law reforms, which concern the liabilities and defences for online publication. Currently, anyone who publishes a website or a blog is liable for the comments made there by <a href="https://www.abc.net.au/news/2021-09-08/high-court-rules-on-media-responsibility-over-%20facebook-comments/100442626" target="_blank" rel="noopener">third parties</a>. Continuously moderating comment streams for potentially defamatory material is onerous and expensive at a time when media organisations have far fewer resources than they did in the pre-digital age. Against this backdrop, it is hardly surprising that Lachlan Murdoch feels he can use his immense wealth and power to intimidate and silence a relatively small outfit like Crikey.com. Behind him stand corporations with a market capitalisation of billions. Crikey says its company, Private Media, is valued at less than $20 million. <h2>Murdoch’s demands</h2> Murdoch wants Crikey to take down the story and issue an apology. In pursuit of his case, he has filed suit in the Federal Court. In defiance of Murdoch’s claim, Crikey has published his 2014 oration at the State Library of Victoria named in honour of his grandfather, Sir Keith Murdoch, as part of its <a href="https://www.crikey.com.au/2022/08/22/lachlan-murdoch-letters-crikey-why/" target="_blank" rel="noopener">publishing of the legal correspondence</a>: <blockquote> Censorship should be resisted in all its insidious forms. We should be vigilant of the gradual erosion of our freedom to know, to be informed and make reasoned decisions in our society and in our democracy. We must all take notice and, like Sir Keith, have the courage to act when those freedoms are threatened. </blockquote> Quite. This article originally appeared on <a href="https://theconversation.com/murdoch-v-crikey-highlights-how-australias-defamation-laws-protect-the-rich-and-powerful-189228" target="_blank" rel="noopener">The Conversation</a>. Image: Getty

Legal

Fan accused of being drunk by Nick Kyrgios wants to sue him

A tennis fan who was accused by Nick Kyrgios of being drunk during a Wimbledon match wants to sue him for defamation. Kyrgios was playing against Rafael Nadal at Wimbledon back in July when the Aussie star complained to the umpire about Anna Palus who was “costing him the game”. He said Palus was "drunk out of her mind" and "looks like she's had 700 drinks" which she took offence to after being removed from the crowd. Palus has since hired legal representation and is looking to sue Kyrgios for defamation following his comments. “On Sunday July 10 2022 I attended the final of the Wimbledon tennis championships with my mother. It was an event we had been looking forward to for some time,” Palus’ statement read. “During the course of the final, Nick Kyrgios made a reckless and entirely baseless allegation against me. “Not only did this cause considerable harm on the day, resulting in my temporary removal from the arena, but Mr Kyrgios’s false allegation was broadcast to, and read by, millions around the world causing me and my family very substantial damage and distress.” <blockquote class="twitter-tweet"> "She's drunk out of her mind and talking to me in the middle of a game. She's the one who looks like she's had 700 drinks." Classic Nick Kyrgios<a href="https://twitter.com/hashtag/Wimbledon?src=hash&ref_src=twsrc%5Etfw">#Wimbledon</a> <a href="https://t.co/mhDw7M2Zbd">pic.twitter.com/mhDw7M2Zbd</a> — Chris Hammer (@ChrisHammer180) <a href="https://twitter.com/ChrisHammer180/status/1546145885528248320?ref_src=twsrc%5Etfw">July 10, 2022</a></blockquote> She explained that she was not a lawyer and was debating on whether or not she should take legal action before deciding that she felt like she had no choice. “I am not litigious, but after much consideration, I have concluded that I have no alternative but to instruct my solicitors Brett Wilson LLP to bring defamation proceedings against Mr Kyrgios in order to clear my name,” she continued. “The need to obtain vindication, and to prevent repetition of the allegations are the only reasons for taking legal action. “Any damages recovered will be donated to charity. Given the extant claim, I am unable to comment further on the events of the day in question. “I hope that Mr Kyrgios will reflect on the harm he has caused me and my family and offer a prompt resolution to this matter.” “However, if he is unwilling to do this, I am committed to obtaining vindication in the High Court. Images: Getty

Legal

“May justice be done”: Ben Roberts-Smith’s trial comes to an end

The defamation trial launched by Ben Roberts-Smith against Nine newspapers has come to an end after four years, with Justice Anthony Besanko left with the final task of condemning or clearing the war veteran’s name. Mr Roberts-Smith’s lawyers are hoping that finding in their client’s favour will see his name cleared and result in the largest defamation payout in history, while a finding in favour of his journalist opponents could validate their claims he committed “the most heinous acts of criminality” while serving in the SAS. The lengthy case drew to a close on Wednesday after over 100 days of evidence, more than $25 million in legal fees and two weeks of closing speeches. Arthur Moses SC, Mr Roberts-Smith’s barrister, used his closing statement to push the fact that Nine had the burden of proof to prove their claims the Victoria Cross recipient had murdered unarmed prisoners, “(Nine) published allegations and stories as fact that condemned Mr Roberts-Smith as being guilty of the most heinous acts of criminality that could be made against a member of the Australian Defence Force, and indeed any citizen,” Mr Moses said. “It depends upon recollection of events that occurred during missions more than 10 years ago… Recollections which are contradicted either by their own witnesses, our witnesses and Defence Force documents.” “They have urged upon the court a case which is one of mere suspicion, surmise and guesswork to condemn a man, who served his nation with great distinction, as a war criminal.” Mr Moses called on Justice Besanko to reject Nine’s case “in all forms”. Meanwhile, Nicholas Owens SC, representing Nine, closed his case by returning to the claims and counterclaims, including the question of Mr Roberts-Smith’s motive in killing six detained Afghans when he had transported hundreds of others safely back to Australia bases, which Mr Roberts-Smith said Nine had left unanswered. When he opened his case in June 2021, Mr Owens said that even “the most brutal, vile member of the Taliban imaginable” can’t be killed once detained and “to do so is murder”. On Wednesday, he returned to this point and said Mr Roberts-Smith killed the detainees simply because they were “enemy combatants”. “We say that was a powerful motive that operated in relation to all of these incidents… it was a motive to kill Taliban insurgents regardless of the lawfulness of doing so,” Mr Owens told the court. Justice Besanko thanked lawyers on both sides, as well as the legal team for the Commonwealth government who had been on-hand every single day in court to keep highly classified material out of the public sphere. With the trial conducting itself in a combination of open and closed court, with sensitive information and testimonies being held in closed court, the full scope of evidence Justice Besanko must consider isn’t well-known. It is also unknown just how long it will take Justice Besanko to reach a verdict, given the sheer volume of evidence and documents, but it is expected to take many months. Nick McKenzie, one of the journalists Mr Roberts-Smith launched his case against, took to social media following the trial’s conclusion to summarise the claims made against Mr Roberts-Smith and call for justice to be done. <blockquote class="twitter-tweet"> Roberts-Smith trial is now over, save for judgment. 4 years ago RS launched it. Such stress for all involved: SAS eye witnesses who accuse RS of murders/cliffkicking of innocent Afghan father, Afghans who witnessed the same, brave woman who spoke up about DV. May justice be done. — Nick McKenzie (@Ageinvestigates) <a href="https://twitter.com/Ageinvestigates/status/1552124223669149696?ref_src=twsrc%5Etfw">July 27, 2022</a></blockquote> “Roberts-Smith trial is now over, save for judgement,” the Age journalist wrote. “4 years ago RS (Roberts-Smith) launched it. Such stress for all involved: SAS eye witnesses who accuse RS of murders/kicking of innocent Afghan father, Afghans who witnessed the same, brave woman who spoke up about (domestic violence). “May justice be done.” Image: Getty Images

Legal

“Target on his back”: Ben Roberts-Smith’s spectacular closing remarks

After 100 days of <a href="https://www.oversixty.com.au/finance/legal/key-witness-arrested-in-ben-roberts-smith-trial" target="_blank" rel="noopener">testimony</a>, cross-examination, and dissection of <a href="https://www.oversixty.com.au/finance/legal/multiple-bombshells-dropped-in-ben-roberts-smith-case" target="_blank" rel="noopener">evidence</a>, Ben Robert-Smith’s defamation trial is at the beginning of the end. Lawyers representing the veteran began their closing submissions by accusing The Age, The Sydney Morning Herald, The Canberra Times, and three journalists of embarking on a “sustained campaign” to falsely portray him as a war criminal, bully and domestic abuser. “Mr Roberts-Smith was an exceptional soldier; highly organised, disciplined, a leader, resourceful and extraordinarily brave,” his barrister, Arthus Moses SC, told the Federal Court on Monday. “He did not seek, nor did he want any recognition for performing his duties as a member of the Australian Defence Force. What he did not expect is, having been awarded the Victoria Cross, he would have a target on his back.” Mr Moses told Justice Anthony Besanko, who has been overseeing the proceedings, that the trial had been called “a great many things”, including the “trial of the century”, a “proxy war-crimes trial” and an “attack” on press freedom. “It is none of these,” he said. “This has been a case about how Mr Roberts-Smith, the most decorated Australian soldier, and a man with a high reputation for courage, skill and decency in soldiering, had that reputation destroyed by the respondents.” The articles, published in mid-2018, claimed that Mr Roberts-Smith killed or was complicit in the killing of six unarmed prisoners during his deployment in Afghanistan with the SAS. It was alleged he also bullied other soldiers and physically abused a woman he was having an affair with. The Victoria Cross recipient has emphatically denied all allegations, while the newspapers have relied on a truth defence during the trial, calling dozens of current and former SAS soldiers to testify. Mr Moses began his address by denouncing the conduct of the Nine newspapers, claiming they refused to back down from errors in their stories and taking aim at the evidence provided by three of their witnesses: Person 7, Person 14, and Andrew Hastie, a former soldier-turned politician. "The publications of the respondents were based on rumour, hearsay and contradictory accounts from former colleagues who were, some, jealous, and/or obsessed with Mr Roberts-Smith,” Mr Moses said, adding that Mr Hastie was “obsessed” with Mr Roberts-Smith but failed to provide evidence to support the murder claims. Mr Hastie, who served with Mr Roberts-Smith briefly in 2012, was called to testify about a mission in Syahchow and claims that the veteran soldier had ordered a junior soldier, referred to as Person 66, to execute an Afghan captive during the mission. The MP told the court he was at Syahchow that day and saw a dead body with an AK-47 rifle, and that Person 66 looked uncharacteristically uneasy. He claimed that Mr Roberts-Smith walked past and said, “Just a couple more dead c***s”. However, Person 66 refused to testify about the mission on the grounds of self-incrimination. Mr Moses claimed there was no evidence to support Nine’s claim of murder, and that the “sensationalist” stories came from bitter and jealous SAS insiders who wanted to take Mr Roberts-Smith down. "What is apparent is that both journalists (Nick McKenzie and Chris Masters) have mounted a sustained campaign to unfairly create a belief that Mr Roberts-Smith had committed war crimes in Afghanistan, including during the course of these proceedings," he said. Each side has been allocated four days for a closing address. Image: Getty Images

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“Target on his back”: Ben Roberts-Smith’s spectacular closing remarks

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