The judgment will be delivered on Thursday, June 1, at 2.15pm.<\/p>\n
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Justice Anthony Besanko is set to deliver his judgment in the long-running Ben Roberts-Smith litigation.<\/span>Credit: <\/span>Nine<\/cite><\/p>\n Roberts-Smith, a former Special Air Service corporal, launched defamation proceedings against the mastheads in August 2018 over a series of six articles, published between June and August that year. Half of the articles are online versions of print stories.<\/p>\n University of Sydney Professor David Rolph, an expert in defamation law, said \u201cthe stakes on both sides are incredibly high\u201d and the case was \u201ca test of public interest journalism\u201d.<\/p>\n \u201cIt\u2019s clearly one of the most high-stakes defamation cases that we\u2019ve seen in recent times,\u201d Rolph said.<\/p>\n \u2018It\u2019s clearly one of the most high stakes defamation cases that we\u2019ve seen in recent times.\u2019<\/p>\n Roberts-Smith \u2013 awarded the Victoria Cross, Australia\u2019s highest military honour, in 2011 for his actions in a 2010 battle in Tizak, Afghanistan \u2013 alleges the newspapers wrongly accused him of war crimes, bullying a fellow soldier, and an act of domestic violence against a former lover.<\/p>\n Besanko will rule on whether those meanings were conveyed by the articles and whether he was identified by the reports, four of which did not name him, and then consider any defences as required.<\/p>\n The newspapers say the first four articles did not identify Roberts-Smith and none conveyed the meanings alleged, but they seek to rely chiefly on a defence of truth to any of the meanings found to have been conveyed.<\/p>\n As part of their truth defence, the newspapers allege Roberts-Smith was involved in the murder of five unarmed prisoners while on deployment in Afghanistan between 2009 and 2012, contrary to the rules of engagement that bound the SAS. Roberts-Smith denies the claims.<\/p>\n The legal issues in the case, including the truth defence, were well known, Rolph said. \u201cIt is the factual issues in this case that are of incredible complexity,\u201d he said.<\/p>\n Rolph said the litigation was \u201cperhaps the last case to be decided pre the most recent [defamation] reforms, which introduced a public interest defence\u201d in most jurisdictions.<\/p>\n The new public interest defence started in July 2021, after the articles were published, in NSW, Victoria, Queensland, South Australia and the ACT. Tasmania followed suit in November that year. Western Australia and the Northern Territory have yet to make the changes.<\/p>\n The Roberts-Smith decision would give a \u201cuseful indication about the limitations or strengths of Australian defamation law before the reform\u201d, Rolph said.<\/p>\n Under the truth defence, the media outlets needed to prove on the balance of probabilities \u2013 meaning it was more likely than not \u2013 that Roberts-Smith was involved in the murder of the five unarmed prisoners, among other claims.<\/p>\n While this is less onerous than the criminal standard of proof beyond reasonable doubt, the so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in making grave findings.<\/p>\n \u201cThe standard of proof is the balance of probabilities, but where you have serious allegations, a court, in order to be satisfied something is true, will have to take into account the seriousness of the allegation,\u201d Rolph said.<\/p>\n The Morning Edition newsletter is our guide to the day\u2019s most important and interesting stories, analysis and insights. <\/i><\/b>Sign up here<\/i><\/b>.<\/i><\/b><\/p>\nMost Viewed in National<\/h2>\n
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