Latest news with #NineNewspapers
News.com.au
13 hours ago
- News.com.au
Ben Roberts-Smith battles for last chance to overturn defamation loss in Australia's highest court
Ben Roberts-Smith has turned to Australia's highest court in a last-ditch effort to sue Nine Newspapers over war crime allegations. Roberts-Smith claims the Federal Court bolstered its murder conclusions on the assumption that because he didn't challenge evidence, he accepted it as fact. Roberts-Smith filed an application for special leave with the High Court of Australia on Wednesday, just a month after he failed to overturn his loss to Nine Newspapers over war crimes allegations made in a series of stories. Federal Court Justice Anthony Besanko in June 2023 dismissed Roberts-Smith's multimillion-dollar lawsuit against The Sydney Morning Herald, The Age and Canberra Times in a landmark judgment. Justice Besanko found that Roberts-Smith was involved in the murder of four unarmed men during his deployment in Afghanistan. The findings were made on the balance of probabilities, which is less than the criminal standard of beyond reasonable doubt. His appeal to the Full Court of the Federal Court was dismissed by Justices Nye Perram, Anna Katzmann and Geoffrey Kennett in May The court found that while Justice Besanko made two errors in his judgment, they were described as 'immaterial'. Roberts-Smith's latest bid to overturn his defamation loss hinges on two grounds, including claims the Federal Court made an error by assuming he accepted facts because he didn't contest evidence. 'The Full Court erred by treating the appellant as affirmatively accepting facts that were not recontested, and using that assumed acceptance to bolster its murder conclusions, thus misconceiving the effect of unchallenged findings on appeal,' the special leave application stated. The other ground argued the Federal Court preferred 'delayed, contradictory and memory-impaired' eyewitness accounts over Australian Defence Force (ADF) operational records. This was in relation to Roberts-Smith's involvement in the murder of two prisoners at a compound called Whiskey 108 in 2009, the murder of a handcuffed shepherd Ali Jan at Darwan in 2012, and Roberts-Smith directing members of the Afghan partner forces to shoot a man following the discovery of a cache of weapons during an operation at Chinartu. The application argues the findings of war crimes couldn't be reached to the requisite standard under the Evidence Act as they relied on 'inconsistent and memory-impaired recollections' from more than a decade after the events and despite 'exculpatory' ADF operational records. ADF records document 'lawful engagements and no executions' and would-be engagements 'consistent with the laws of armed conflict', Roberts-Smith claims. Further, the application claims the records were discounted on 'speculative or flawed grounds', including by treating them as 'no more than repetitions of the applicant's account' or rejecting them on 'asserted inconsistencies that arose only at trial and were not evident at the time of reporting' in the cases of Darwan and Chinartu. Finally, it argued that the findings were reached without the 'criminal-trial safeguards of a jury, prosecutorial disclosure and proof beyond reasonable doubt', and the Evidence Act had been misapplied in regard to the satisfaction of 'facts tantamount to criminal guilt'. Roberts-Smith continues to deny the allegations, last month releasing a statement that said: 'Sunlight is said to be the best disinfectant, and I believe one day soon the truth will prevail.'
ABC News
3 days ago
- Politics
- ABC News
Ben Roberts-Smith takes legal battle to the High Court
War veteran Ben Roberts-Smith has shifted his long-running battle with Nine Newspapers to the High Court in a new effort to sue over allegations of war crimes in Afghanistan. Mr Roberts-Smith lost the first round when the Federal Court found the publisher had proven on the balance of probabilities that allegations he was responsible for, or complicit in, the deaths of four detainees in Afghanistan were substantially true. The court also upheld the allegations of bullying to the civil standard, although accusations of domestic violence against a woman in Canberra were found not to be supported by sufficient evidence. In a special leave application lodged with the High Court, Mr Roberts-Smith has taken aim at the court's reliance on the civil standard of proof, which allowed the publisher to successfully defend the case. He says he was entitled to the presumption of innocence and has not been charged with anything. Mr Roberts-Smith's lawyers say the evidence laws should have been more strictly applied, given the circumstances of such serious allegations. "The findings brand the applicant a serial war criminal, a criminal condemnation of the most ruinous kind, yet they were reached in civil proceedings absent the criminal trial safeguards of a jury, prosecutorial disclosure and proof beyond reasonable doubt," the court application says. Mr Roberts-Smith's application acknowledges the standard of proof for civil matters in the balance of probabilities, but says that is not the end of the matter. "The evidence Act … reflects the common law position that in civil proceedings the gravity of the facts sought to be proved is relevant," the application says, adding that the degree of satisfaction for the civil standard can vary. Mr Roberts-Smith is hoping to convince the court more attention should have been paid to Australian Defence Force records. A second ground to be put to the High Court suggests the Federal Court also erred by assuming Mr Roberts-Smith had agreed to accept some matters not re-contested in the appeal. The application has asked for the Federal Court rulings to be overturned, to clear the way for Mr Roberts-Smith to sue the publishers. It is not known when the High Court will consider the special leave application, which must be accepted before any substantial challenge.
The Guardian
23-05-2025
- Politics
- The Guardian
Court's nuanced analysis of Nick McKenzie's secret recording in Ben Roberts-Smith appeal a far cry from Sky News claims
When three judges dismissed Ben Roberts-Smith's appeal in his defamation case against Nine Newspapers last week, they made some insightful comments on journalism practices, in particular the delicate relationship between a reporter and a source. Dismissing Roberts-Smith's interlocutory application to reopen the appeal over a secret recording of the journalist Nick McKenzie and a source, the judges noted the 'very experienced investigative journalist' was 'accustomed to getting the most out of his sources'. It was a far cry from the way some media framed the recording two months earlier. 'Explosive confessions from star Nine reporter caught on secret tapes expose tricks against Ben Roberts-Smith war crimes trial', Sky News Australia said. The appeal judges said the 'unlawful' recording of a conversation between Australia's most celebrated journalist and a potential witness was part of a longer conversation and they could not be confident 'that the contents of the recording have not been doctored by removing sections or splicing together different parts of a recorded conversation'. They rejected an attack on McKenzie's credibility by Roberts-Smith's barrister Arthur Moses, saying they 'generally accept his evidence'. But it was their analysis of the nature of the conversation that demonstrated they understood the nuances of a journalist talking to a source. McKenzie was 'seeking to reassure an important potential witness' and had 'an incentive to exaggerate', they said. In the witness box the Age and Sydney Morning Herald journalist explained how in speaking to another source he gave an 'impression of excitement in order not to reveal that he already knew some of what he was being told', they said. 'This is a reason why the recording should be treated with caution in so far as it is relied on as an admission of wrongdoing or otherwise as evidence that Mr McKenzie really was receiving briefings on the appellant's 'legal strategy'.' McKenzie, who has won an incredible 16 Walkley awards, said it was a 'terrifying experience to be put before the full bench of the federal court'. But two days after the court published its reasons for rejecting a wider defamation appeal, McKenzie was back in print with an exclusive story about the ongoing investigation into war crimes. Next month Hachette Australia will release an updated edition of McKenzie's book Crossing the Line, including new material on the appeal and the emotional and professional toll of the case. SBS has leaned into its old reputation as the 'Sex Before Soccer' network with the release of a cheeky new campaign to celebrate its 50th birthday. With the tagline 'We Go There', the 60-second ad features a middle-aged man running naked through the SBS shows Alone, Insight, The Point and, of course, a football match (not that the network has the rights to many competitions these days). The film is 'so daring and so SBS, it can't be played anywhere but SBS', the network said. And that is exactly what happened this week when ABC's Gruen panellists analysed the ad. Although all the panellists praised its originality and ingenuity, the public broadcaster had to censor the full frontal nudity. Host Wil Anderson, who dubbed SBS 'Sweaty Ball Sack', said full frontal nudity was not allowed on Aunty. Editors put a sticker saying 'Too rude for the ABC' over the man's genitals as he ran across the pitch. David Crowe, the outgoing chief political correspondent for the Sydney Morning Herald and the Age, was farewelled at the National Press Club on Wednesday evening before heading off to London as Europe correspondent. Journalists and staffers particularly enjoyed two messages read out at the Canberra event: one from Labor minister Tanya Plibersek and one from the former prime minister, Malcolm Turnbull. Unsurprisingly, they both referred to Peter Dutton's infamous attack on 'Crowey', as he is affectionately known to all. In January 2024 the then opposition leader posted a tweet in response to news that Guardian Australia's then-political editor, Katharine Murphy, was joining Anthony Albanese's office. 'I am genuinely shocked to see Murpharoo take up a spot to now be officially running lines for Labor,' Dutton said on X. Sign up to Weekly Beast Amanda Meade's weekly diary on the latest in Australian media, free every Friday after newsletter promotion 'The real outrage is David Crowe missed out. What more must he do to prove his credentials to formally be employed by the Labor Party? #givecroweago.' The Canberra Times' political analyst Mark Kenny said it was 'not just churlish but clearly intimidatory'. Plibersek and Turnbull both said Crowe had the last laugh. His final column contained a critique of Dutton's disastrous media strategy. 'Thanks to the internet and the smartphone, the media is a landscape of earthquakes and eruptions – and Peter Dutton has shown everyone how to be engulfed in lava when you think you're at the top of the mountain,' he wrote. 'The former Liberal leader is a case study in what not to do.' Crowe has been replaced as chief political correspondent by Paul Sakkal, who was described internally by the executive editor of Nine's metro mastheads, Luke McIlveen, as 'one of the best news breakers in the gallery', which he joined in early 2023. Natassia Chrysanthos, who McIlveen said had a 'forensic eye for detail', has been appointed federal political correspondent. It's been a rapid rise for the two reporters, both 29, who began as trainees in 2018. Buried in the documents filed by Sky News Australia in defence of a defamation claim brought by the lawyer Adam Houda is a rare full disclosure of how many people watch The Bolt Report across all Sky platforms. Here is the rundown of Bolt's audience. For the 7pm broadcast on Foxtel on the night the allegedly defamatory comments were made (23 January 2024) there was an average audience of 57,000. For a rough comparison, Bolt is up against ABC News and Nine's A Current Affair in the 7pm time slot. Both free-to-air shows usually have up to 1 million viewers. On Sky News Regional, Bolt picked up another 43,900 and Sky News Now had 10,100 streams. On Foxtel's streaming platform the program had an average audience of 4,600 with 250 video-on-demand streams. On the Flash service there were 757 streams and an additional 48 on the Sky News website. The content was also published on Facebook and YouTube. After a complaint from Houda, the episode was removed from all platforms and an apology remains online, although it was not enough to stop the lawsuit. Sky News and Bolt are defending the defamation claim on the grounds of truth.
The Guardian
20-05-2025
- Politics
- The Guardian
Ben Roberts-Smith defamation appeal failed because ‘unlike most homicides, there were three eyewitnesses', judges explain
Ben Roberts-Smith acted with 'a certain recklessness or perhaps even brazenness' when he killed a man with a prosthetic leg in Afghanistan in full view of other soldiers by shooting him with a machine gun, the full bench of the federal court has found. 'The problem for [Roberts-Smith] is that, unlike most homicides, there were three eyewitnesses to this murder,' the judges wrote. The disgraced former soldier lost his appeal against a defamation case ruling last week, with three justices of the federal court agreeing that he was not defamed by Nine newspapers and journalists Nick McKenzie and Chris Masters when they published reports in 2018 which claimed he had committed war crimes. The decision of the court was handed down on Friday morning in Sydney, but reasons for the judgment were temporarily withheld to give the federal government time to ensure that no matters of national security had inadvertently been revealed in them. The open reasons were published on Tuesday. Roberts-Smith has always denied the allegations against him and indicated he would appeal the decision to the high court. In the open reasons, Justices Nye Perram, Anna Katzmann and Geoffrey Kennett examined the findings of Justice Anthony Besanko, who ruled in 2023 that Roberts-Smith had, on the balance of probabilities, committed war crimes while deployed in Afghanistan. Sign up for Guardian Australia's breaking news email 'We detect no error in his Honour's approach,' the justices wrote, in an analysis of Besanko's findings relating to one of the deaths at the heart of the case – the killing of an unarmed Afghan man who had a prosthetic leg. 'The eyewitness accounts provided cogent evidence that the appellant had machine gunned the man with the prosthetic leg … When all is said and done, it is a rare murder that is witnessed by three independent witnesses. The appellant's efforts to construct uncertainty out of inconsistencies in peripheral detail are unpersuasive.' The bench also dealt with Roberts-Smith's contention that Besanko had erred in his decision by reasoning 'in a fashion which had reversed the burden of proof'. 'There is nothing in this submission,' concluded the appeal judges, who added that some of the criticisms made of Besanko in Roberts-Smith's appeal submission were 'both unfair and unfounded'. Sign up to Breaking News Australia Get the most important news as it breaks after newsletter promotion The decision of the full bench of the federal court affirms as substantially true claims made in news reports by McKenzie and Masters in 2018 that Roberts-Smith was responsible for the murder of four unarmed civilians when deployed in Afghanistan. The bench backed Besanko's reasoning, calling it a 'long, careful and clear judgment'. 'We are satisfied that his Honour's conclusions with respect to the substantial truth of the relevant imputations conveyed by the respondents' articles were correct. Consequently, the appeals must be dismissed.' The bench ordered Roberts-Smith to pay costs, which the Sydney Morning Herald has estimated to exceed $40m.
ABC News
20-05-2025
- Politics
- ABC News
Ben Roberts-Smith defamation case appeal dismissal judgment released by Federal Court
The Federal Court has published its reasons for dismissing war veteran Ben Roberts-Smith's bid to overturn his defamation loss, which found the Victoria Cross recipient complicit in war crimes while deployed to Afghanistan. The former Special Air Service Regiment (SASR) corporal launched an appeal after losing his defamation case against three Nine-owned newspapers following a civil trial, which ran for more than 100 days over 2021 and 2022. Mr Roberts-Smith's appeal, which was heard in February last year, was unanimously thrown out by the full bench of the Federal Court on Friday. Federal Court Justices Geoffrey Kennett, Nye Perram and Anna Katzmann found "the evidence was sufficiently cogent to support the findings that the appellant [Mr Roberts-Smith] murdered four Afghan men". The publication of the court's reasons for its decision was briefly delayed to give the Commonwealth the opportunity to redact any evidence that may present national security concerns. "In a long, careful and clear judgment the primary judge [Justice Anthony Besanko] correctly identified and applied the relevant legal principles and paid close attention to the serious nature of the allegations and the standard of proof," the judgment read. "His Honour repeatedly reminded himself that the respondents bore the onus of proving the substantial truth of the imputations and of the cogency of the evidence necessary to discharge it." One of the allegations against Mr Roberts-Smith, which was found to be substantially true to a civil standard, was that the soldier committed murder by machine gunning an Afghan man with a prosthetic leg outside a compound during a mission on Easter Sunday in 2009. In its appeal judgment, the court characterised the unlawful killing as "dramatic" and suggested a sense of "brazenness" on Mr Roberts-Smiths part considering the presence of three witnesses. "The killing of the man with the prosthetic leg in such a dramatic fashion does suggest a certain recklessness or perhaps even brazenness on the part of the appellant," the Federal Court found. "The problem for the appellant is that, unlike most homicides, there were three eyewitnesses to this murder." "The appellant's efforts to construct uncertainty out of inconsistencies in peripheral detail are unpersuasive." The full bench also upheld the allegation against Mr Roberts-Smith that during the same mission, he authorised the execution of an unarmed Afghan by a junior trooper in his patrol as an act of "blooding the rookie". "For completeness, we are satisfied that the evidence concerning the blooding the rookie allegation was not only cogently, but in fact powerfully, probative that the appellant and Person 5 had succeeded in having Person 4 kill someone and this is so taking into account the seriousness of the allegation and the presumption of innocence," the judgment read. The court also rejected Mr Roberts-Smith's claim that Justice Besanko failed to give weight to his presumption of innocence. "These were no mere ritualistic incantations, as the appellant suggested," the judgment read. "It is apparent that His Honour was acutely conscious of the seriousness of the findings the respondents called upon him to make and of the necessity that he be reasonably satisfied that the imputations were substantially true without resorting to inexact proofs, indefinite testimony or indirect inferences." Mr Roberts-Smith indicated on Friday that he would immediately seek a High Court challenge to the Federal Court's dismissal of his appeal and application to reopen the matter with the inclusion of new evidence.
