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Ben Roberts-Smith’s reputation was ‘smashed and destroyed’ by claims of war crimes

Ben Roberts-Smith had lost $475,000 in earnings from public speaking engagements since he was accused of war crimes, the Federal Court has heard.

Australia’s most decorated soldier was paid $320,000 for public speaking in the 2018 financial year before Nine newspapers published stories alleging he murdered six Afghanis.

His barrister, Bruce McClintock SC said the effect of those stories had been to ‘smash and destroy’ the Victoria Cross recipient’s reputation. 

‘In 2018… there could not have been a former soldier better known or more highly respected than my client,’ Mr McClintock told the court. 

That all changed after newspapers including The Age and Sydney Morning Herald accused Mr Roberts-Smith of war crimes and domestic violence in August 2018, he said. 

Australia’s most decorated soldier Ben Roberts-Smith (centre) is suing three newspapers and three journalists he says destroyed his reputation as a war hero. His barrister Bruce McClintock SC is pictured left

Mr Roberts-Smith would be seeking aggravated damages because according to Mr McClintock, the publisher knew some of their claims to be false. 

The stories had been presented in a ‘sensational’ manner, included ‘unjustifiable allegations of murder’ and had not been withdrawn.

Whereas Mr Roberts-Smith was once much in demand as a speaker, even invitations to Anzac Day ceremonies stopped. 

The former soldier had also been offered a partnership in a big accounting firm on a salary higher than he was earning as the Queensland general manager of Seven West Media but pulled out of that job. 

Mr McClintock said it was ‘not a competition’ to set records for damages payouts but his client would need a sufficient amount to be compensated for the loss of his reputation and hurt.  

‘The more serious the attack the greater the amount of money that’s necessary to vindicate,’ Mr McClintock said. 

He said an accountant would estimate Mr Roberts-Smith had lost $475,000 from speaking engagements alone. 

Mr McClintock also confirmed former governor-general Dame Quentin Bryce, who had presented Mr Roberts-Smith with his VC, would not be giving character evidence on his behalf ‘for personal reasons’ but had never withdrawn her support. 

Ben Roberts-Smith will spend the next two months in room 18D at the Law Courts Building in the central business district defending himself against claims he is a war criminal

Ben Roberts-Smith will spend the next two months in room 18D at the Law Courts Building in the central business district defending himself against claims he is a war criminal

His accusers have also assembled at the Federal Court as they try to prove on the balance of probabilities that Mr Roberts-Smith was involved in six murders during Australia's longest war

Mr Roberts-Smith is suing Nine-owned newspapers The Sydney Morning Herald and The Age, plus the now-separately owned The Canberra Times over allegations he committed battlefield crimes while on deployment in Afghanistan, which he vehemently denies

His accusers have also assembled at the Federal Court as they try to prove on the balance of probabilities that Mr Roberts-Smith was involved in six murders during Australia’s longest war

Mr McClintock told the court on Monday his client had been the victim of jealous former comrades who falsely accused him of committing war crimes.

‘This is a case about courage, devotion to duty, self-sacrifice and perhaps most important of all, surpassing skill in soldiering,’ Mr McClintock told Justice Anthony Besanko.

‘On the other hand, your Honour, it’s a case about dishonest journalism, corrosive jealousy, cowardice and lies. 

‘It’s also about how a man with a deservedly high reputation for courage, skill and decency… had that reputation destroyed by bitter people jealous of his courage and success as a solider, particularly his Victoria Cross, aided by credulous journalists.’ 

Mr McClintock said Mr Roberts-Smith was just the latest in a long line of young men Australia had sent overseas to fight and die for more than a century.

War was relentlessly violent, Mr McClintock said, and that fact had been forgotten in the rush to bring Mr Roberts-Smith down.

Mr McClintock then quoted Britain’s War World II leader Winston Churchill: ‘We sleep soundly in our beds because rough men stand ready in the night to visit violence on those who would do us harm.’

He argued Mr Roberts-Smith and his comrades-in-arms were sent to kill in Afghanistan and their Taliban insurgent enemy did not wear uniforms and decisions had to be made without the benefit of hindsight.

Nine executive editor of Australian Metro Publishing James Chessell (left) and editor of the Sydney Morning Herald, Lisa Davies (right) arrive at the court

Nine executive editor of Australian Metro Publishing James Chessell (left) and editor of the Sydney Morning Herald, Lisa Davies (right) arrive at the court

The parents of Mr Roberts-Smith, Len and Sue Roberts-Smith depart the Federal Court, hours after claiming the allegations against their son ruined their lives

The parents of Mr Roberts-Smith, Len and Sue Roberts-Smith depart the Federal Court, hours after claiming the allegations against their son ruined their lives

The war in Afghanistan was fought amid intense heat, dust, noise, smells and fear – a battlefield on which Mr Roberts-Smith excelled.

‘It is impossible here in this court room the reality of fighting in the conditions that existed in Afghanistan,’ Mr McClintock said.

Mr McClintock said decisions in the heat of battle had to be made instantly and how one person might see an event from 100m away could appear completely different up-close.

‘Perspective is everything,’ he told the court. ‘Battle is not like a computer game when you restart the game and get your lives back.’

Mr McClintock said the former soldiers who made claims against Mr Roberts-Smith had not spoken up until years after the events they now complained about.

He suggested some of their claims were made out of jealousy over Mr Roberts-Smith’s medals for gallantry and their own failures as soldiers. 

Mr McClintock said one false allegation Mr Roberts-Smith murdered an Afghani, which was recently withdrawn by Nine, should lead to the largest aggravated damages ever awarded in Australia.

The action in September 2012 involved Mr Roberts-Smith swimming a river at Darwan in Uruzgan Province and shooting dead a mid-level insurgent armed with an AK-47-style assault rifle.

Mr Roberts-Smith was awarded the Victoria Cross for 'selfless' actions in Afghanistan and will now fight for his reputation in the Federal Court, claiming he was smeared by media giant Nine Entertainment

Mr Roberts-Smith was awarded the Victoria Cross for ‘selfless’ actions in Afghanistan and will now fight for his reputation in the Federal Court, claiming he was smeared by media giant Nine Entertainment

During his fifth tour of duty in Afghanistan, Mr Roberts-Smith (pictured) drew enemy fire away from pinned-down members of his patrol, stormed two enemy machine-gun posts and silenced them

During his fifth tour of duty in Afghanistan, Mr Roberts-Smith (pictured) drew enemy fire away from pinned-down members of his patrol, stormed two enemy machine-gun posts and silenced them

Mr Roberts-Smith then rolled the man’s body to the edge of the river and sat him up so he could be photographed to be identified with facial recognition technology.

‘There can be absolutely no doubt that my client killed this insurgent within the rules of engagement,’ Mr McClintock said.

Mr McClintock outlined events which occurred at a Taliban compound known as Whiskey 108 at Kakarak in southern Afghanistan on Easter Sunday in April 2009.

During that engagement Mr Roberts-Smith shot dead an insurgent with a prosthetic leg. Another soldier, known as Person 6 in the court case and one of Mr Roberts-Smith’s ‘enemies’, souvenired the leg as a war trophy.

Mr McClintock said the leg was kept at the SAS base and used as a drinking vessel, which might seem in bad taste, ‘but in the scheme of human wickedness it does not rate very high’.

Nonetheless, Mr Roberts-Smith maintained he never drank from the hollow limb because he did not want to lend approval to something Person 6 did.

On another mission in July 2012 in the Chora Valley a patrol led by Mr Roberts-Smith had been accidentally fired upon by another SAS patrol.

A member of Mr Roberts-Smith’s patrol, known as Person 10, opened fire with a machinegun. Mr Roberts-Smith saw that a woman in a burka and a boy were in Person 10’s arc of fire.

Mr McClintock said that after that engagement Mr Roberts-Smith asked Person 10 why he had shot at the woman and child.

When Person 10, who has accused Mr Roberts-Smith of bullying, responded by giggling, Mr Roberts-Smith punched him the face.

‘He’s hardly the first person in the army to throw a punch,’ Mr McClintock told the court.

Mr Roberts-Smith's ex-wife Emma has 'flipped' and is giving evidence for Nine Entertainment. The former couple is pictured together at a reception to celebrate military and civilian heroes in London in 2012

Mr Roberts-Smith’s ex-wife Emma has ‘flipped’ and is giving evidence for Nine Entertainment. The former couple is pictured together at a reception to celebrate military and civilian heroes in London in 2012

Mr Roberts-Smith is also suing his ex-wife Emma Roberts, claiming she broke into his email account. She is pictured outside her Brisbane home on Friday

Mr Roberts-Smith is also suing his ex-wife Emma Roberts, claiming she broke into his email account. She is pictured outside her Brisbane home on Friday

Mr McClintock also referred to the capture of three Afghan men and a teenager who were travelling in a Toyota Hilux at Fazel in November 2012. The youth was allegedly ‘shaking like a leaf’ during the encounter.

Nine claims Mr Roberts-Smith admitted murdering the boy in a conversation one or two days after the mission in a conversation with Person 16 who asked him, ‘What happened to the young bloke who was shaking like a leaf?’

Mr Roberts-Smith allegedly responded: ‘I shot the c*** in the head. [Person 15] told me not to kill any c*** on that job so I pulled out my 9mm and shot him in the head. It was the most beautiful thing I’ve ever seen.’

Mr McClintock said that version of events was ‘absolutely ridiculous’.

‘It’s like Robert Duvall in Apocalypse Now as Colonel Kilgore on ice,’ he said. ‘It’s insane. It’s the sort of thing that would be said by an ostentatious psychopath.’

Defence documents would reveal the four males were intercepted by a patrol Mr Roberts-Smith was not on, the boy had been released and the three men were taken to the Australian base at Tarin Kowt.

Mr Roberts-Smith is pictured with the prosthetic leg of a fallen Afghani that was kept at the SAS base and used as a drinking vessel. Mr McClintock said this might seem in bad taste, 'but in the scheme of human wickedness it does not rate very high.' Mr Roberts-Smiths denies ever actually drinking from the leg

Mr Roberts-Smith is pictured with the prosthetic leg of a fallen Afghani that was kept at the SAS base and used as a drinking vessel. Mr McClintock said this might seem in bad taste, ‘but in the scheme of human wickedness it does not rate very high.’ Mr Roberts-Smiths denies ever actually drinking from the leg

Mr McClintock said the jealousy towards his client escalated after he was awarded the Victoria Cross in 2011, when he became famous outside military circles.

The court heard that on Mr Roberts-Smith’s last deployment to Afghanistan in 2012 he would find messages such as ‘BRS is after another medal’ on a noticeboard at the Australians’ headquarters.

Mr McClintock said by 2012 the workload Mr Roberts-Smith endured was ‘almost inhumane’ but he coped better with repeated deployments than many of his colleagues.

After Mr Roberts-Smith left the army, completed a MBA and had business success, the ‘poisonous campaign’ of envy against him increased.

‘Some might call it the tall poppy syndrome,’ Mr McClintock said. ‘Others might just call it jealousy.’ 

Mr Roberts-Smith is suing Nine-owned newspapers The Sydney Morning Herald and The Age, plus The Canberra Times over allegations he committed battlefield crimes.  

'I'm feeling good mate, looking forward to finally setting the record straight,' Mr Roberts-Smith told Daily Mail Australia ahead of the hearing

‘I’m feeling good mate, looking forward to finally setting the record straight,’ Mr Roberts-Smith told Daily Mail Australia ahead of the hearing

The former soldier has taken leave as general manager of Seven's Queensland operations for the duration of the hearing

The former soldier has taken leave as general manager of Seven’s Queensland operations for the duration of the hearing

Mr Roberts-Smith’s case is being bankrolled by the Seven Network’s owner, billionaire Kerry Stokes. The former soldier has taken leave as general manager of Seven’s Queensland operations for the duration of the hearing. 

The 42-year-old is set to step into the witness box to defend his reputation this week. 

Mr Roberts-Smith was awarded the country’s top military honour for ‘selfless actions in circumstances of great peril’ while hunting a senior Taliban commander at Tizak in June 2010. 

During his fifth tour of duty in Afghanistan, Mr Roberts-Smith had drawn enemy fire away from pinned-down members of his patrol, stormed two enemy machine-gun posts and silenced them.

Mr Roberts-Smith has taken leave as boss of the Seven Network's Queensland operations for the duration of the hearing. His case is being bankrolled by Seven's owner, billionaire Kerry Stokes (pictured with wife Christine)

Mr Roberts-Smith has taken leave as boss of the Seven Network’s Queensland operations for the duration of the hearing. His case is being bankrolled by Seven’s owner, billionaire Kerry Stokes (pictured with wife Christine)

In his lawsuit, Mr Roberts-Smith alleges Nine's newspapers and its journalists Nick McKenzie (pictured), David Wroe and Chris Masters defamed him in the then Fairfax press in 2018.

In his lawsuit, Mr Roberts-Smith alleges Nine’s newspapers and its journalists Nick McKenzie (pictured), David Wroe and Chris Masters defamed him in the then Fairfax press in 2018.

He had previously been awarded the Medal for Gallantry for his actions as a patrol scout and sniper near the Chora Pass in May 2006.

In his lawsuit, Mr Roberts-Smith alleges Nine’s newspapers and its journalists Nick McKenzie, Chris Masters and David Wroe defamed him in what was then known as the Fairfax press in 2018.

Among his claims is that the publications wrongly made out that he ‘broke the moral and legal rules of military engagement and is therefore a criminal.’

Mr Roberts-Smith says the newspapers falsely implied his alleged conduct had disgraced his country and the Army.

Nine Entertainment Co, the media giant which now owns the old Fairfax outlets, is defending their journalists’ claims on the basis the allegations are true. 

Mr Roberts-Smith is pictured shaking hands with the Queen at Buckingham Palace at a reception for the Victoria Cross and George Cross Association in 2018

Mr Roberts-Smith is pictured shaking hands with the Queen at Buckingham Palace at a reception for the Victoria Cross and George Cross Association in 2018

Former governor-general Dame Quentin Bryce pinned Mr Roberts-Smith's Victoria Cross to his chest (pictured) and was expected to give a character reference at trial, however reports have claimed she has withdrawn

Former governor-general Dame Quentin Bryce pinned Mr Roberts-Smith’s Victoria Cross to his chest (pictured) and was expected to give a character reference at trial, however reports have claimed she has withdrawn

The newspapers will plead that Mr Roberts-Smith was complicit in and responsible for the murders of six people in Afghanistan, and that those alleged actions constituted war crimes. 

The onetime corporal will be the first witness of an expected 60 to be called at what is estimated to be a ten-week trial. 

After Mr McClintock gives his opening, the ex-soldier will give evidence and then face what is likely to be a week of cross-examination by lawyers for Nine. 

Character witnesses will then testify on his behalf, followed by witnesses for Nine.

Mr Robert-Smith’s ex-wife Emma Roberts, the mother of his two children, is expected to give evidence for the publisher after ‘flipping’ sides. 

Ms Roberts’ friend Danielle Scott, John McLeod – a former bodyguard of drug smuggler Schapelle Corby – alleged Afghani eye-witnesses and a handful of soldiers will also be called by Nine in the main trial. 

Then Mr Roberts-Smith’s team will call evidence from his other witnesses, understood to include former SAS comrades. 

Among Mr Roberts-Smith's claims is that the Nine Entertainment publications wrongly made out that he 'broke the moral and legal rules of military engagement and is therefore a criminal.' Mr Roberts-Smith is pictured

Among Mr Roberts-Smith’s claims is that the Nine Entertainment publications wrongly made out that he ‘broke the moral and legal rules of military engagement and is therefore a criminal.’ Mr Roberts-Smith is pictured

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