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BlackBay Insights

  • Writer's pictureClaudia McDonnell

The Repercussions of the Biggest Defamation Trial in Australian History - BRS

The gavel has finally struck on Ben Roberts-Smith’s long-awaited trial against a string of newspapers. The Court’s judgment is just as ground-breaking as the original allegations themselves.

Australia’s defamation system is often accused of favouring plaintiffs. This case, more than any other, was expected to cement that belief, being brought by Australia’s most decorated living war hero, aided by some of the profession’s best barristers and a media juggernaut footing the bill. But this judgment seems to prove otherwise.

As a result, the sheer scale of this litigation could usher in a turning point in Australia’s defamation culture, giving greater protections to the press.

Let us summarise it for you.


Ben Roberts-Smith (BRS) brought three actions for defamation in the Federal Court about three groups of articles published in 2018 by The Sydney Morning Herald, The Age and Canberra Times.

There were two questions the case turned on:

  1. Were the imputations (allegations) about BRS made out in the publications?

  2. f so, were the allegations true, either in substance or contextually?

To answer the first question, the Court found that all the imputations except one was conveyed in the articles. In other words, almost all the allegations made by the newspaper damaged his reputation.

What were the imputations?

  • BRS directly committed murder of an unarmed and defenceless Afghan civilian by kicking him off a cliff and making the soldiers under his command shoot him, indirectly by pressuring a new soldier to execute an elderly, unarmed Afghan and directly by machine gunning a man with a prosthetic leg.

  • BRS took the prosthetic leg of the man of whom he shot at with a machine-gun and took it back to Australia and encouraged his soldiers to drink beer out of it.

  • BRS bashed an unarmed Afghan to the extent that two patrol commanders ordered him to back off.

  • BRS broke the moral and legal rules of war and therefore is a criminal.

  • BRS committed an act of domestic violence against a woman and is a hypocrite for publicly supporting Rosie Batty while abusing a woman in private.

  • BRS bullied a small and quiet soldier and threatened to report him to the International Criminal Court unless he provided an account of a friendly fire incident that was consistent with BRS’.

  • BRS assaulted an unarmed Afghan.

Once the Court determined the allegations or imputations were conveyed, the next step was to decide whether the newspapers had any defences to justify their allegations against BRS.

Were the allegations true?

The newspapers defended the imputations they made with two defences:

  1. Substantial truth

  2. Contextual truth

To prove the defence of substantial truth the publishers had to prove that the allegation was, in substance, true. This means that even if some details are incorrect but most of the allegation is true, it will still be considered substantially true.

Justice Besanko found that most the imputations were substantially true.

This mean that the alleged criminal acts of murder and assault were proven not by the criminal standard of beyond reasonable doubt but by the civil standard on the balance of probabilities. The civil standard is lower than the criminal one and means the newspaper required less evidence to prove his guilt to justify their publication.

Of the imputations that fell short of context substantial truth, including the alleged domestic violence, bullying and threats, Justice Besanko found they were contextually true.

‘Contextually true’ means that even the defendants could not prove that certain allegations in the publications were true, the allegations that have been proven are more serious and therefore the unproven ones do no do further harm than the proven allegations.

In other words, the defendants do not have to prove all the imputations are substantially true. They must just prove the most serious ones were true as they were the imputations that caused harm to the plaintiff’s reputation.

Public interest defence?

This case commenced before the 2021 defamation reforms where a public interest defence was introduced to the Defamation Act 2005. Had this case been heard today, the newspapers may have also relied on the public interest defence to bolster their argument.

What does this mean for defamation?

This case clarifies reputational risks as well as legal ones.

If you bring a claim in defamation, especially where criminal allegations are concerned, there is a chance the publisher will plead the truth defence. Then, the case is not just about whether your reputation was harmed or not but whether you are guilty of the acts alleged. The alleged criminal conduct will not be determined at the criminal standard but rather, at a much lower proof threshold. This means, although you may want to vindicate your reputation by commencing an action in defamation, you do risk exposing yourself to a judgment on whether you are criminally guilty or not in a civil court.

When you choose to sue in defamation, you accept the risk of all types of information coming out in court and largely, there is little you can do to control that. As such, absent an impeccable and unblemished character or record, a resolution without the need of Court proceedings or a final hearing is preferable. However, for some people such as Ben Roberts-Smith, the allegations may be so serious that there seems no choice but to sue.

Our team at BlackBay Lawyers are trusted advisors in solving reputational issues both within and beyond the Courts and courtrooms. If you believe you have been defamed or have received a Concerns Notice, reach out to our team to partner with you in securing your rights and reputation.


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