Ben Roberts-Smith defamation trial: Lawyers say execution known to be false

Journalists knew Ben Roberts-Smith didn’t execute an Afghan teenager for one very simple reason, the elite soldier’s lawyers have told a court.

Journalists accused Ben Roberts-Smith of shooting an Afghan teenager in the head despite already knowing he was risking his life in a totally different part of the war torn nation, the elite soldier’s lawyers say.

They have told a judge the accusation was made in “bad faith” and was one of many used to “smash and destroy” the SAS veteran’s reputation.

Mr Roberts-Smith returned to the Federal Court on Tuesday for the second day of his lawsuit against Nine’s newspapers and journalists Nick McKenzie, Chris Masters and David Wroe.

His barrister Bruce McClintock SC this week told Justice Anthony Besanko the journalists had rushed to tear down Australia’s most decorated soldier with allegations of war crimes in Afghanistan and domestic violence in Australia.

Mr McClintock said Mr Masters knew one allegation in particular was false – the execution of a teenage boy.

Nine’s court documents initially said an SAS patrol, under Mr Robert-Smith’s leadership, pulled over a HiLux with four adult men and one adolescent male aged 15 to 18, in October 2012.

Mr Roberts-Smith was accused by Nine of telling another SAS soldier he shot the youngster in the head and made a comment Mr McClintock described as like an Apocalypse Now character “on ice”.

The barrister, on Tuesday, said “that allegation was always made in bad faith” and Mr Masters knew it was false.

“How do we know that? Mr Masters, in his book, has my client in a completely different operation in a completely different part of Afghanistan,” the barrister said.

Mr Roberts-Smith, the court previously heard, received a commendation on the day Nine originally claimed he had executed the teenager.

His lawyers last year described it as a “cast-iron alibi” that was cited in his commendation for distinguished service.

Nine amended the date of the allegation to November 5 in the lead up to the defamation hearings.

Mr McClintock said it wasn’t good enough, describing it as “unjustifiable allegations of murder” that contradicted Department of Defence documents.

The HiLux Mission

Nine’s court documents allege the youngster in the HiLux was “visibly extremely nervous” and Mr Roberts-Smith later said over the radios two enemies had been killed in action.

Nine alleges an SAS soldier, a few days later, asked Mr Roberts-Smith what happened to the young male who was “shaking like a leaf”.

“I pulled out my 9mm and shot him in the head,” Nine claims Mr Roberts-Smith responded.

“It was the most beautiful thing I’ve ever seen.”

Nine said his actions “constituted murder”.

Mr McClintock, on Monday, told the court a HiLux was intercepted with three fighting age males and an adolescent. The car was packed with explosive weapons.

The men were arrested and the boy was released – and Mr Roberts-Smith was not even part of the SAS patrol involved, he said.

Mr McClintock denounced the words attributed to his client.

“It’s insane. It’s the sort of thing that would be said by an ostentatious psychopath,” he said on Monday.

Damages, public speaking and Anzac Day invitations

Mr Roberts-Smith lost his reputation, hundreds of thousands of dollars and a lucrative career path when the war crime and domestic violence allegations against him were published, the court heard.

Mr McClintock said the former soldier had made $320,000 through public speaking in the 2018 financial year but that business evaporated after he was accused of punching a woman in a hotel – a claim he denies.

“It’s plainly impossible for someone accused of domestic violence, no matter how false it may turn out to be, to work in public speaking – it would not countenance it,” the barrister said.

An expert, the court heard, estimates Mr Roberts-Smith has lost $475,000 with the collapse of the speaking business and also lost a partnership offer at a top tier accounting firm because of the allegations.

That economic loss will form part of Mr Roberts-Smith’s bid for damages but, if he wins his case, he will also push for compensation for hurt feelings and the harm to his reputation.

“(At the time of publication) there could have been no former soldier better known or more highly regarded than my client,” Mr McClintock said on Tuesday.

“The effect of these articles has been to smash and destroy (his reputation).”

The court was told Mr Roberts-Smith used to be inundated with requests to appear at Anzac Day ceremonies but, this year, he received none.

“These are allegations of murder and war crimes and really there can be nothing more serious than that,” Mr McClintock said.

A letter from Dame Quentin Bryce

The court heard former Governor-General Dame Quentin Bryce maintained her support for Mr Roberts-Smith despite withdrawing as a witness.

“Her excellency has indicated she ‘has never withdrawn her support for Mr Roberts-Smith but won’t appear for personal reasons’,” Mr McClintock said reading from a letter attributed to Dame Bryce.

The court was closed on Tuesday as Mr McClintock delved into documents which remained classified under national security laws.

Mr Roberts-Smith is expected to give evidence on Wednesday.

Read related topics:Ben Roberts-Smith


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