Ben Roberts-Smith vows High Court appeal over defamation loss

Victoria Cross recipient Ben Roberts-Smith plans to ask Australia’s highest court to overturn a judgement that he committed war crimes in Afghanistan, and find the journalist who destroyed his reputation acted unethically.

After three Federal Court judges unanimously ruled against the army veteran’s attempt to reverse his loss in a seven-year defamation case, Mr Roberts-Smith insisted he was innocent and vowed to immediately launch a High Court appeal against what he called the “egregious, spiteful allegations”.

“It is extremely disappointing that the full court chose to exclude critically relevant evidence after the unethical conduct of journalist Nick McKenzie,” he said in a written statement.

“I have only every asked for a fair and just hearing — that has not happened.”

Secret judgment

The judges ruled on Friday against the ex-SAS corporal, keeping the full reasons secret until next week to allow government lawyers to check they do not include confidential information.

Articles written by McKenzie and author Chris Masters in The Age, the Sydney Morning Herald and the Canberra Times accused Mr Roberts-Smith of participating in the execution of prisoners in 2009 and kicking a farmer named Ali Jain off a cliff in 2012, prompting a lawsuit that has been called the “defamation case of the century”.

In a summary of their judgement, the judges said Mr Roberts-Smith had failed to prove the evidence against him was too weak to meet the legal test of the balance of probabilities.

“Having carefully considered all these matters, we are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men and to the extent that we have discerned error in the reasons of the primary judge, the errors were inconsequential,” they wrote. “Accordingly, the appeal must be dismissed with costs.”

Hush payment

Two weeks ago the judges, Nye Perram, Anna Katzmann and Geoffrey Kennett, heard McKenzie say on a secretly recorded conversation that he had breached his “f...ing ethics”. It also emerged that his employer, the Nine Entertainment group, paid a witness $700,000 to stay quiet about information passed on to him during the original case.

Mr Roberts-Smith has not been charged. Experts say the case has probably cost more than $25 million in total, a figure that would rise if the appeal goes ahead.

Before the High Court accepts appeals from lower courts, it conducts short, preliminary hearings overseen by a single judge to determine if the cases have a chance of succeeding.

Mr Roberts-Smith’s barrister, Arthur Moses, KC, challenged Mr McKenzie’s reporting methods in court, and accused the 16-time Walkley winner of behaving in a “professionally improper and ethically indefensible” way.

In a last-minute attempt to win the appeal, Mr Moses alleged two weeks ago the recording proved the journalist had obtained his opponent’s confidential legal strategy from Mr Roberts-Smith’s ex-wife and her best friend. In the witness box, Mr McKenzie denied acting unethically or receiving any information that was legally privileged.

‘Abuse of power’

In his statement on Friday, Mr Roberts-Smith said the Nine board “unashamedly used its power, influence and money to secure the silence of a witness 10 days before my appeal commenced in February, 2024.”

“That witness was preparing to give direct evidence of Mr McKenzie’s use of my privileged material during the trial,” he said.

The judges refused to accept the recording as part of the case. They said it was not new evidence and should have been raised during the original defamation trial in 2020 or 2021.

The head of Nine’s newspaper division, Tory Maguire, said:. “Nine has unswervingly backed our reporters and editors throughout this matter, reinforcing our longstanding commitment to quality journalism in the public interest.”

Mr Roberts-Smith is a former executive at Seven West Media, which is the owner of West Australian Newspapers, which publishes The Nightly.