Ben Roberts-Smith's appeal has been dismissed, but the legal saga isn't over
Decorated war veteran Ben Roberts-Smith's bid to overturn a defamation ruling that found on the balance of probabilities he was complicit in war crimes has been dealt a considerable blow.
Lawyers for the former Special Air Service Regiment (SASR) corporal and Victoria Cross recipient will likely spend the coming days poring over the reasons for the dismissal of his appeal by the full court of the Federal Court to overturn his defamation case loss against three Nine newspapers.
Mr Roberts-Smith originally sued over a series of articles published in 2018 with allegations of war crimes in Afghanistan, bullying and domestic violence against a woman in Canberra.
The appeal was heard in February last year after his multi-million-dollar defamation case against three Nine-owned newspapers was dismissed by Justice Anthony Besanko in 2023, who found him complicit in war crimes on the balance of probabilities.
The alleged domestic violence was found to be not sufficiently supported by evidence, but the court ruled any reputational harm fell away in the context of the overall decision.
In the appeal, Mr Roberts-Smith's legal team argued Justice Besanko made several legal errors, including incomplete fact-finding, insufficient reasoning and arbitrary conclusions about witness reliability.
The former SASR corporal also had an application to reopen the appeal with the inclusion of new evidence dismissed by the full bench of the Federal Court.
The articles at the centre of the long-running legal saga were published about seven years ago, and after countless hours of court hearings, one thing is clear: It's not over yet.
In a statement, Mr Roberts-Smith said while he accepted the decision of the Federal Court, he would seek to challenge it in the High Court, the apex court of the Australian legal system.
"I continue to maintain my innocence and deny these egregious, spiteful allegations. We will immediately seek to challenge this judgment in the High Court of Australia." Mr Roberts-Smith said.
Former president of the Australian Bar Association, Melbourne barrister, and defamation expert Matt Collins, KC, said it was not a surprising result.
"It was a 10-day appeal, which is an unusually long appeal in which the central issues concerned findings of fact, and it is notoriously difficult for an unsuccessful party at a trial to persuade an appeal court to reverse findings of fact," he said.
Dr Collins said seeking leave to appeal to the High Court was very difficult.
"In the High Court, only about 15 per cent of persons seeking leave to appeal in cases of this kind get leave, so it is very much a long shot."
He said each case was different.
"The High Court in some circumstances will review findings of fact to see whether something has gone wrong in the way in which the judge at the trial and then the Full Court made its findings of fact," Dr Collins said.
"But as a general rule, it is harder to overturn findings of fact than it is to identify and then have corrected errors of law."
More about the Federal Court appeal is expected within days.
Given the national security elements relating to some of the case, the court's reasons for its decision have not been published yet.
The court has determined parts of it will never be released due to national security concerns.
And as for the rest, the Commonwealth has been given until Tuesday next week to review it and decide if more needs to be redacted before the justices reveal more about the reasons for their judgment.
However, in an executive summary released by the justices ahead of a judgment said Mr Roberts-Smith's appeal canvassed "various matters … which he contends disclose discrete errors".
"Having carefully considered all these matters, we are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men and to the extent that we have discerned error in the reasons of the primary judge, the errors were inconsequential," the justices wrote.
During Friday's decision, the Federal Court justices ordered Mr Roberts-Smith to pay costs for the appeal.
Rick Sarre, an emeritus professor of law and criminal justice at the University of South Australia, said the issues of appeal costs would be in the "millions".
"We're talking millions of dollars — whether we get to 10 or 12 or 13 million dollars will be a matter for the judges to determine," Professor Sarre said.
"I dare say we won't know what the final cost is for another month or two. Typically, in these matters one side will put in its costs and typically if they're not agreed immediately it goes for a judge to consider."
Dr Collins also agreed the costs would be in the millions, adding, "It is a bit, 'How long is a piece of string?"
After the initial defamation trial, Mr Roberts-Smith was ordered to pay indemnity costs for the entirety of his failed case against Nine.
Indemnity costs compensate the successful party to a higher level than what a court would more commonly order after a legal case.
Seven West Media chair and billionaire Kerry Stokes, who financially supported the war veteran, was also ordered to pay a high percentage of the legal bill to the newspapers.
"Reportedly the costs of this trial went into the tens of millions of dollars — there are very few players in Australia with pockets deep enough to be able to defend investigative journalists," Dr Collins said.
Dr Collins believed the case would "act as a sobering message to those thinking on taking on legacy media players" for defamation in public interest cases.
Professor Sarre added: "The original trial went for something like 100 days and the appeal went for around 10 days, so if you're talking about some of the best QCs [barristers] charging [thousands] a day even just for their appearances in court then you can imagine the costs are going up considerably.
"This has been a very expensive exercise for Kerry Stokes."
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