A defamation case is usually about evasion. Close your eyes for a second and you can (almost) hear a lawyer pleading: ‘Oh no your honour. We certainly weren’t suggesting our article was about the defendant and even if (totally accidentally) we did, we certainly didn’t mean to imply whatever it was we hinted at’. Such trials swiftly take on an air of unreality and detachment and there’s a simple reason why. Proving ‘truth’ – the only other defence available to media companies – is so very, very hard.
This is one reason that the defamation trial brought by former SAS corporal Ben Roberts-Smith, VC MG, is so very riveting. The newspaper articles at the centre of the case were originally penned by some of Australia’s most experienced investigative journalists including Chris Masters who has both written books about and spent time with the Special Operations Task Group in Afghanistan. That’s why the decision by the media companies to defend the essential veracity of the stories, to effectively re-fight the battles in court, represents a stunning insistence that the articles were, in essence, correct.
Attempting to discover the truth of what occurred one afternoon amidst the sudden danger, dust and despair of Orüzgan, and then attempting to re-create those moments in a federal courtroom perched high above Sydney’s Macquarie Street will inevitably prove one of the biggest challenges in the case. How can anyone not present appreciate the chaotic situation after an intense firefight in an operation long ago? The challenge is huge, and perhaps this explains why the legal strategies that seem to have been adopted by both sides are so different. Roberts-Smith’s lawyer began with a simple sketch of his client’s military background. How, he asked, could someone so highly regarded possibly have acted in the manner alleged? But that ignores the critical point. What’s not on trial here is the remarkable bravery displayed by Robert-Smith on the two occasions for which he received the highest awards for valour available. Nor is this trial about Special Forces operations in the province or how the war in Orüzgan was fought. Despite this, as readers of Asia Pacific Defence Reporter will be very aware, this trial risks becoming a surrogate for something much greater: a prism through which the military’s entire Afghanistan commitment – and hence the army itself – will be judged.
That is why the case commands such huge resonance in the Australian community. Through a quirk of timing the defamation case happens to have come first. Before the forthcoming War Crimes Trials and the later Official War Histories. As a result, its outcome will inevitably frame the way the army is viewed.