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Chris Merritt
Legal Affairs Contributor
20 July, 2023
Why Ben Roberts-Smith defamation ruling has a long way to play out

In order to make sense of the Ben Roberts-Smith case, one important point needs to be kept in mind: this was not a war crimes trial or a murder trial – at least not officially.

Allegations of murder and war crimes were at the heart of the argument. But the reality is that this was merely an expensive, complex private dispute.

 The media defended the truth of reports that this man, a recipient of the Victoria Cross, murdered people in Afghanistan.

This vindicated the three journalists who had pursued him: Nick McKenzie, Chris Masters and David Wroe. But this affair is not over.

The judge’s ruling is subject to appeal and media reports say Roberts-Smith – who I will refer to as BRS – is under investigation by the Office of the Special Investigator.

 This is the federal agency responsible for pursuing suspected war crimes and preparing briefs of evidence for the Commonwealth Director of Public Prosecutions.

But BRS is still be entitled to a presumption of innocence.

That flows from one of the fundamental principles of the rule of law: that everyone is entitled to a presumption of innocence until a criminal court rules otherwise.

That has not happened. And there is no certainty it will ever happen.

A criminal trial would use a higher standard of proof than the standard that was applied in the defamation case.

There are also significant procedural differences in criminal justice to ensure the immense power of the state does not result in unfairness when that power is directed against individuals.

 Prosecutors, for example, have a duty of fairness that requires them to disclose not just details of the prosecution case, but details that the prosecution uncovers that could benefit the accused.

The judge in the defamation case recognised these differences when he referred to arguments that his court did not have all the evidence that would ordinarily be available in a criminal trial.

That last point – about missing evidence – is troubling. It means the court made a finding of murder on the civil standard of proof without having all of the evidence that would have been available in a criminal trial.

So even if the outcome of the defamation case is upheld on appeal, any criminal prosecution would have different procedures, different rules and different evidence.

That means the prospect of a different outcome – that is, an acquittal – cannot be ruled out.

All this puts us in a very strange position. 

The journalists in this case have successfully defended their reports that BRS committed murder.  His reputation is in tatters. So is it legitimate to refer to him  as a murderer?

Those who choose to refer to him in that manner can find support in the findings of fact in the massive judgement that was produced by the Federal Court’s Justice Anthony Besanko.

But describing BRS as a murderer, without clearly explaining the significant differences between defamation and criminal justice, adds to confusion and could eventually undermine public confidence in Australian justice.

 Consider the alternative: If, after the defamation case, it is legitimate to refer to BRS in an unqualified manner as a murderer, imagine the ludicrous situation that would arise if he were to be tried on criminal charges and acquitted?

He would simultaneously be a “murderer” and acquitted of murder.

This is why it is important to be clear about the difference between civil and criminal justice.

Even if the different standards of proof are put to one side, the judge’s finding that the murders took place was made on the available evidence – which falls short of the evidence that would have been available to a criminal court.

It must therefore be less reliable than a finding by a criminal court.

For BRS, his decision to sue has been a disaster.

In retrospect, he should have bided his time and waited to fight these accusations in a criminal court – where he would have the benefit of a higher standard of proof.

There is no guarantee that a criminal prosecution would succeed.

The incidents that formed the basis for Justice Besanko’s findings are now up to fourteen years old and will be much older by the time any criminal charges come to court. Memories fade with the passage of time.

The courts have long been wary about how much weight should be placed on memories of historical events.

The late Sir Laurence Street, a former Chief Justice of NSW, expressed those suspicions cogently in a 1983 report of a commission of inquiry into events that had taken place five or six years in the past. 

Street wrote: “In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection.”

If a brief of evidence were given to the Commonwealth Director of Public Prosecutions today, it would be startling if the prosecutors were to make an independent assessment of that material within six months. 

If criminal charges were then laid, preliminary jousting in court might take up to a year and that would mean a criminal trial might not start until late next year or early 2025.

At that point witnesses would be giving evidence about events that took place up to sixteen years in the past – three times longer than the delay of five or six years that so concerned Sir Laurence Street.

This is an edited extract of a paper to be delivered on Friday at a conference of the Business Educators Association of Queensland.