Australian Defence Force must ensure the findings against Ben Roberts-Smith are not the end of the story

• The court found that reporting by Nick McKenzie, Chris Masters and David Wroe had satisfactorily established the truth of several serious imputations against Roberts-Smith.
• Read more:
  A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?

Standards of proof and evidence

• This case was a civil proceeding, meaning the imputations only needed to be proven true on the balance of probabilities, a substantially lower requirement than proof beyond a reasonable doubt, which would be required in a criminal trial.
• Because of the different standards of proof, it is not certain Roberts-Smith would be found guilty in a war crimes trial, assuming all the same evidence was called.
• Prosecutors will be concerned, moreover, that the outcome of the high-profile defamation trial might influence a future war crimes proceeding.

Contextual truth

• Some imputations against Roberts-Smith were not substantiated at the defamation trial.
• However, Justice Besanko found that these defamatory statements, which concerned threatening a fellow soldier and domestic violence, were nonetheless contextually true.

Broader implications

• He received financial support for the case from Kerry Stokes – who, from 2015 to 2022, was chair of the Australian War Memorial.
• While the memorial as an institution did not support Roberts-Smith with the case, Stokes remained as chair even after his role was publicly questioned.
• The interpretation from some quarters that reporting on Roberts-Smith constitutes unfair criticism of a war hero will persist.
• Since the second world war, Australia has positioned itself internationally as a champion of the laws and proper conduct of war.