In 2018 Ben Roberts-Smith, one of Australia’s most decorated war heroes, sued Fairfax Media in response to a series of articles published by the Sydney Morning Herald, The Age, and The Canberra Times, written by journalists Nick McKenzie and Chris Masters.
These articles, the culmination of about a year’s work of secret investigative work by McKenzie and Masters, detailed allegations from fellow Australian soldiers concerning war crimes committed by Roberts-Smith in Afghanistan.
What followed in 2021 and 2022 was dubbed the defamation trial of the century, with reams of evidence and testimony from 41 witnesses presented to Justice Anthony Besanko over more than 100 days.
McKenzie and Masters set out to prove that the allegations of murder, bullying and intimidation published were substantially true and that Roberts-Smith was not defamed. Roberts-Smith denied it all.
In a landmark judgement, Justice Besanko delivered a win for Fairfax Media Publications, dismissing the proceedings and ruling that the newspapers had proven the substantial truth of the majority of allegations against Roberts-Smith. The case is under appeal.
Last week Nick McKenzie joined Noosa’s Anthony Watson in conversation at Noosa Springs Resort and Spa as part of Noosa Alive! Festival to talk about his book, Crossing the Line, which details the work that led to the articles and a victory for the media.
There was absolute silence, so captivated was the audience at the sold-out event, as McKenzie told of the investigations of allegations against Roberts-Smith the journalists undertook and the journey through the defamation case.
“The allegations that came to us initially were that there were civilians with their hands bound, sometimes their eyes covered and they were summarily executed,” McKenzie said.
The most egregious allegation was a man called Ali Jan – a civilian, a farmer who had gone to get some shoes for his daughter, some flour and some firewood and never came home, he said
“SAS, when they sweep through a village, detain every fighting-age male. They’re detained, plasticuffed. Ali Jan was one of 35 men detained that day. He made the mistake of smiling at Ben at the wrong time.”
He was led to the edge of a small cliff, kicked off the cliff and executed, he said.
“We didn’t believe it. We were as eager to disprove it as prove it,” McKenzie said.
“How do you prove that a man in Afghanistan was kicked off a cliff seven years before.”
McKenzie told how he and Masters, a journalist twice his age and his former mentor, travelled to Afghanistan to seek out civilian eyewitnesses and talk to Roberts-Smith’s former colleagues in the SAS.
“It’s this grim, tough game of knocking on doors, making pitches to let us into their lives, to risk their careers,” he said.
“If a man of the SAS is seen talking to journalists, not only will they lose their careers, they’ll be thrown into the military clink.”
Eventually SAS soldiers did let them in, recounting their stories, as did Afghanis.
“There were numerous eyewitnesses. There were specific things around it. The SAS had dogs who wear glasses for protection,” McKenzie said.
“We found Afghani witnesses. They said there was a dog wearing glasses – that detail stuck in their head.
“An American working as a translator saw the man kicked off a cliff. He saw the dog there. How could it be they were saying the same thing.”
When the story came out Roberts-Smith might have executed civilians he was head of Channel 7 in Queensland and his boss Kerry Stokes employed not only journalists but PR team to discredit the story, he said.
During the defamation case they had to subpoena every witness.
“If any of our sources knew in 2017 that in 2020 they would be subpoened to a court case they would have run the other way,” he said.
“They were breaking the code of silence. They were testifying against the man they fought with.
“There were men of the SAS – one of our witnesses fought 11 times in Afghanistan, killed many Afghanis. He got up in court and testified against Ben.
“We fight hard, we fight fair,” the SAS soldier said.
“I don’t hesitate to drop the hammer, (which means pull the trigger), but I do not kick a detainee off a cliff. That’s not what we do as Australian soldiers.”
McKenzie said during the case the SAS soldier who saw the cliff kick walked into court
“We spent five years trying to get this man to talk. This man walks into court. No one knows what he’s going to say. He ignores Roberts-Smith.”
The soldier told how the man, who was there with his donkey, was led to the cliff.
“Roberts-Smith took four steps back. He lunged at him. I saw him fly off the cliff, saw his head hit a rock, saw it explode.
“I’m not jealous of Roberts-Smith There’s no other man I’d least like to be like,” he told the court.
Roberts-Smith credibility was discredited on evidence given by his ex-wife and ex-girlfriend, which was believed by the judge, McKenzie said.
McKenzie said one day his ex-wife sees him out in the backyard.
“She suspects him of multiple infidelities. He has two phones. He’s getting in shape, he’s taking selfies. She sees him burying something in the backyard.
“Finally his affair is exposed. He leaves the house. One day he sends her a message I’m picking up my stuff. Her best mate says he’s going to get whatever he’s buried in the backyard.
“They dig it up. It’s a pink kid’s lunch box It’s got six USBs in it. They take the USBs, they rebury it.
“They take out the USBs which are given to the Federal Police – on those USBs is critical evidence for the court case which he was obliged to hand over.
“Judge found this was a conspiracy to conceal the truth. It killed the credibility of Roberts-Smith as a witness.”
McKenzie said the defamation case put the future of journalism on trial.
“I realised if this goes badly in this court case it’s all over for me, and who knows the implications for my employers and journalism,” he said.
“After the case, our executive of our company said if you had lost the case, I was worried for the future of our papers.”
McKenzie said what motivated him as a journalist was his dislike of bullies and his passion for finding out the truth.
In the history of the law you can’t think of a case around the world where someone has brought a law case and it’s blown up in their face so tremendously.
Read the whole story in Crossing the Line by Nick McKenzie.
