It’s the end of the first week of the largest defamation trial in Australia and the central issue could not be clearer. Did Ben Roberts-Smith, this country’s most awarded soldier of the modern era, commit six murders and an act of domestic violence? Could this veteran of the Afghanistan war have gone beyond the rules of conflict to unlawfully kill six men and also assault a woman with whom he was having an extramarital affair?
If he wins the case, Roberts-Smith will go back to the life he had before the newspaper stories he claims defamed him were published: a war hero with a Victoria Cross who represented his country at hundreds of public engagements enjoying a lucrative career as a public speaker.
If he loses, he will go down in history as a monster who, in the heat of battle, besmirched the sacred reputation of the Australian Defence Force (ADF).
Members of the ADF are in court, watching his evidence and reporting back to the department.
Roberts-Smith is suing three media outlets — The Sydney Morning Herald, The Age and The Canberra Times — in the Federal Court over articles which he claims portrayed him as a war criminal and domestic abuser.
Roberts-Smith is represented by the most high-profile defamation barrister in the country, Bruce McClintock SC, for whom this is his last case before retiring. McClintock, one of the bar’s toughest cross-examiners, will be looking to go out on a high.
Millions of dollars are at stake. McClintock has flagged that if his client wins he will be applying for aggravated damages which will be sky high. If the newspapers lose, it will be a sizeable chunk of their annual profits and a huge disincentive to commission and publish investigative journalism.
Public interest is high. The public gallery is full every day with what appears to be both supporters and detractors. Every media outlet in the country is also present, necessitating a large room to be set aside for journalists.
Roberts-Smith’s parents, Len and Sue, have been sitting behind their son at the bar table every. On the first day, Sue held her son’s arm during the breaks, visibly struggling with the urge to throw her arms around him. Yesterday afternoon, when their son appeared to break down in the witness box under questioning about a crucial battle, the couple silently embraced, obviously distressed.
On social media, opinion is sharply polarised. When Roberts-Smith appeared to shed a tear yesterday his detractors claimed it was an “Oscar-winning performance”. But there is a huge group of supporters — mainly male — who perceive him as a victim of the tall-poppy syndrome, brought down by fellow soldiers who are jealous of his success and profile.
Several veterans have spoken on his behalf: how can we judge the actions of a soldier at war if we haven’t been there? If we have not lain in a foxhole for days, under fire from the Taliban, how can we possibly call him a murderer?
This morning McClintock has asked Roberts-Smith about his attitude to winning the Victoria Cross in 2011.
“Of course I’m proud of it,” he said. “I have such respect for the institution of the Victoria Cross.”
Asked why he had previously described it as a “cross to bear”, he said the award had brought “a lot of misfortune and pain”, adding that it had brought a change in attitude towards him by some of the other soldiers.
“You become a victim of the tall poppy syndrome,” he said. “They dragged me down and undermined me and used the award against me out of pure spite. You have to take it in the chin and keep moving forward.”
The hearing continues this morning.