Defending investigative journalism and Australia’s international military reputation; a new era of war crimes trials in Australia

In a historic win for investigative journalism Federal Court Justice Anthony Besanko threw out the defamation case brought by Ben Roberts-Smith; a man described by the ABC as Australia's most decorated Australian living soldier. The court found that newspapers had established the substantial truth, relating to serious allegations of unlawful killings/assaults of unarmed Afghan prisoners. Roberts-Smith claimed that the allegations published by media outlets that he had committed crimes during his six tours of Afghanistan between 2006 and 2012, defamed his character and reputation.

The Age, the Sydney Morning Herald, and the Canberra Times argued in their defence the substantial truth and contextual truth of their assertions. The judgment, which will be heavily redacted for reasons of national security, found that on the balance of probabilities Ben Roberts-Smith had murdered and coldheartedly committed war crimes against unarmed civilians while serving in Australia's military in Afghanistan.

The case brought by Roberts-Smith was not a war crimes trial, nevertheless the determination by Federal Court Justice Besanko was that it is reasonable to conclude that war crimes had occurred. So how was a Judge able to make these conclusions on the facts?

While this was one of the most significant and expensive trials in Australian legal and military history, it was not a trial of Roberts-Smith for crimes committed. Roberts-Smith had sued three Australian newspapers – the Age, the Sydney Morning Herald, and the Canberra Times – for defamation, alleging a series of stories they published in 2018 had falsely portrayed him as a murderer and a war criminal, a man "who broke the moral and legal rules of military engagement" and "disgraced" his country and its military.

In cases of defamation such as this, the judge is required to balance the claimant's need for vindication against the public's right to know. Roberts-Smith's claim for damages to his reputation of the unproven allegations, were weighed against those allegations that were proven to be true. The media defended their reporting as true and maintained the importance of freedom of expression in the discussion of matters in the public and national interest. In so doing the respondent newspapers were required to prove the veracity of their claims.

Truth is always a defence to a claim of defamation. The newspapers only needed to show that some of the accusations were substantially true; and the remaining allegations did not further harm the reputation of the plaintiff because of the substantial truth of the contextual assertions. Of course, they could always have had the backup defence of public interest, however by following the truth defence, the Australia public was provided a default trial of the facts. Opening up a Pandora's box the Robert-Smith's legal team would have better advised him to "choose his battles".

In usual circumstances, a civil judge needs to weigh the evidence on a balance of probabilities. However in circumstances involving serious allegations such as these, a judicial finding would need to be supported by cogent or strict proof, in accordance with the Briginshaw standard.Briginshaw v Briginshaw(see High Court Justice Dixon's obiter remarks) is precedent for the idea that "the strength of evidence necessary to establish facts on the balance of probabilities may depend on the nature of what is sought to be proven." The severity of the claim necessitated a higher standard of proof applied and the defence of truth required the judge to hear the evidence, in order to establish its probative value.

History of war crimes trials in Australia

Historically Australia has not conducted war crimes investigations and/or prosecutions of its own citizens. Between 30 November 1945 and 9 April 1951 Australian Military courts conducted 296 held in eight venues; Labuan, Wewak, Morotai, Rabaul, Darwin, Singapore, Hong Kong, and Manus Island. These military courts tried 924 enemy nationals for war crimes. Under the enabling legislation – the War Crimes Act 1945, 148 enemy nationals were sentenced to death and executed, with an additional 496 given prison sentences.

However there has not been a war crimes trial on Australian soil involving an Australian soldier. There are only examples of Australian solders tried overseas for crimes committed under the command of the British forces, and trials of suspected Nazi war criminals who became naturalized in Australia after WWII. But there has never been an incident where Australia has called one of its own soldiers to account for war crimes committed on foreign soil.

Lieutenant Harry "Breaker" Morant was court-martialled along with his Australian co-accused Peter Handcock. Both were sentenced to death and executed in South Africa by the British Military under a death warrant personally signed by colonial administrator Lord Kitchener. The two Australians, Morant and Handcock, were members of the Bushveldt Carbineers, a British Army unit that included many Australians, during the Second Boer War. The Australian public came to interpret the executions as politically motivated. The men were considered to be the "scapegoats of the Empire".

A second example of war crimes trials in Australia was Polyukhovich v The Commonwealth [1991] HCA 32. Ivan Polyukhovich settled in Adelaide as a post-war immigrant, become an Australian citizen after the second world war. Polyukhovich, an alleged Nazi war criminal, was accused of murdering, or assisting in the murder of up to 900 men, women and children in Nazi-occupied Ukraine. Tried under the War Crimes Act 1945, by a South Australian court for crimes committed against Ukrainian Jews, Polyukhovich walked free on May 18, 1993, the charges against him never proven.