Millions in Costs and a Reputation in the eyes of the Court left in Tatters: The Legal Fallout from Ben Roberts-Smith’s Failed Appeal

By Demi Swain Eliza Fletcher

3 June 2025

Highly decorated veteran Ben Roberts-Smith’s defamation proceedings have generated much media attention and interest all around Australia (and, in particular, for defamation lawyers). The proceedings are a prime example of the potential risks associated with defamation proceedings.

After losing his proceedings at first instance,¹ on 16 May 2025 the Full Court of the Federal Court of Australia unanimously dismissed Mr Roberts-Smith’s appeal, affirming the finding that most of the imputations arising were substantially true and upholding the defence of contextual truth with respect to the rest.²

 

Background

In 2018, several media outlets including The Sydney Morning Herald, The Age and The Canberra Times published articles alleging that Mr Roberts-Smith had engaged war crimes (including the unlawful killing of 4 Afghani men), bullied fellow soldiers, and had engaged in acts of domestic violence.³

 

First instance proceedings

In August 2018, Mr Roberts-Smith commenced proceedings in the Federal Court of Australia claiming that the articles had defamed him. The respondents contended that the defamatory imputations arising from the articles were substantially true and, to the extent the less serious allegations were not substantiated, also relied on the defence of contextual truth.

The cases were ultimately consolidated and heard together over a staggering 110 days, concluding in July 2022.

On 1 June 2023, Justice Besanko dismissed Mr Roberts-Smiths defamation claims and found that the core allegations made by the media outlets to be substantially true. That is: the Court found that, on the balance of probabilities (the civil rather than criminal standard of proof), it was more likely than not Mr Roberts-Smith had unlawfully killed or was involved in the unlawful killing of unarmed Afghan men during his deployment as a special forces solider.⁴

Whilst his Honour found that the claims of domestic violence could not be proven to be substantially true, by reason of the fact that his Honour found Mr Roberts-Smith had, on a civil standard, engaged in multiple unlawful killings, his reputation could not be damaged further.⁵ Meaning: the respondents’ defence of contextual truth was successful.

 

Defamation law: substantial and contextual truth

Before turning to the Full Court’s findings on appeal, it is useful to summarise what the Court (and lawyers) means when it talks about the defences of substantial truth and contextual truth.

Substantial truth (also known as justification) is a defence to defamation.⁶ To establish this defence, a defendant must prove that the ‘sting’ or material parts of the defamatory imputation(s) arising from the publication are true.⁷ An imputation is the meaning that the hypothetical ordinary, reasonable person would draw from a publication.⁸

Contextual truth is another defence to defamation.⁹ This defence arises where:

1. one or more of the imputations are proven to be substantially true; and

2. the remaining imputations do not further harm the plaintiff’s reputation.¹⁰

For example: A publication states that Joe Bloggs is a murderer (which is substantially true) AND had a drink driving conviction (which is false). In this example, the defendant publisher could argue that in the context of the whole publication the plaintiff’s reputation as a convicted murderer was not further harmed by the convicted drink driver allegation.

 

Standard of proof: Defamation actions and Briginshaw principles

The civil standard of proof applies to defamation matters: on the balance of probabilities.¹¹ But how does that apply where the truth of allegations of criminal conduct must be determined?

Pursuant to s 140 of the Evidence Act, the Court is required to consider three elements when determining if the matter is proven to the civil standard: the nature of the cause of action or defence, the nature of the subject matter, and the gravity of the matters alleged.¹²

This test is the codification of what was formerly known as the ‘Briginshaw’ principle. This fundamental principle stipulates that whilst the civil standard remains the balance of probabilities, the degree of satisfaction required varies with the gravity of the allegation. The Briginshaw principle affects “the strength or cogency of the evidence necessary to establish a fact on the balance of probabilities”.¹³

 

Appeal proceedings

On 11 July 2023, Mr Roberts-Smith commenced an appeal against the decision of Justice Besanko contending that the Court erred in finding that the respondents had proved, to the requisite standard, the substantial truth of the imputations that Mr Roberts-Smith had committed or was complicit in unlawful killings.¹⁴

The appeal comprised 16 grounds. Those grounds of appeal included that:

1. Justice Besanko had erred in the characterisation of witnesses’ evidence and placed significant weight on evidence of witnesses that were not reliable;

2. “official” records supported Mr Roberts-Smith’s contention that the killings were not unlawful. Alternatively, that Justice Besanko erred in rejecting the “official” records and preferring the respondents’ evidence; and

3. Justice Besanko erred in failing to correctly apply s 140 of the Evidence Act 1995 (Cth) and the Briginshaw principles of the presumption of innocence.

 

Witness evidence

Mr Roberts-Smith contended that the Court had erred in accepting the evidence of certain witnesses and rejecting others in relation to the alleged unlawful killings.¹⁵

The Full Court found that Justice Besanko had carefully assessed the credibility of each witness and provided detailed reasons for his findings.¹⁶ The Full Court found that there was no error and further highlighted the rare circumstance of 3 eyewitnesses to one of the murders: strengthening the credibility of the allegations.¹⁷

Mr Roberts-Smith submitted that that the Court at first instance erred in placing significant weight on the evidence of the Afghan witnesses.¹⁸ He claimed that the evidence from the Afghan witnesses was unreliable for multiple reasons, including inconsistencies, improbable evidence, and motivation to lie.¹⁹ In assessing this ground, the Full Court noted that the ‘the attack on the Afghan witnesses at trial was ferocious. They were repeatedly accused of lying and fabricating evidence.’²⁰

The Full Court rejected this ground of appeal,²¹ finding that:

1. Justice Besanko had adequately assessed the reliability of the witnesses and their evidence;²²

2. a tribunal of fact may accept parts of the evidence given by a witness and reject other parts;²³ and

3. there were “remarkable similarities between the key aspects of the evidence given by the Afghan witnesses” and there was “no suggestion, let alone prospect, of collusion and no evidence of communication between them” leading to the only rational explanation being that they were giving an account of the same events.

 

Official records

The Full Court also rejected Mr Roberts-Smith’s assertion that Justice Besanko had erred in rejecting the official records.²⁴

The Full Court affirmed the finding that the official documents, whilst being official in nature, were unreliable having been prepared:

1. by a witness whose evidence was found to be unreliable;²⁵ and

2. in circumstances where not a single witness at trial gave evidence of having seen the 2 men killed in lawful engagement.²⁶

In reaching this conclusion, the Full Court proffered the more mundane, but nonetheless interesting, comparison: a solicitor’s file note is a contemporaneous record of a discussion, but this does not prevent a Court from finding, on appropriate evidence, that the file note is not a complete record or even, in some cases, that the file note is wrong. Such a conclusion does not involve an erroneous conclusion that file notes in general are not reliable documents; rather, it involves the conclusion that a particular file note is not reliable for a particular reason.²⁷

 

Briginshaw principles

Finally, Mr Roberts-Smith contended that the Court had failed to correctly apply s 140 of the Evidence Act 1995 (Cth) and the Briginshaw principles.²⁸

The Full Court rejected this ground:²⁹ finding that the Court at first instance gave adequate weight to the presumption of innocence, was acutely aware of the seriousness of the findings that it was called on to make and therefore the necessity to be sufficiently satisfied that the imputations were substantially true.³⁰

 

The Streisand Effect: further risks of defamation proceedings

Defamation lawyers often refer to the ‘Streisand Effect’.³¹ It refers to the unintended consequences of drawing more attention to something by trying to suppress it.

Mr Roberts-Smith’s defamation proceedings are a case study in how catastrophic the Streisand Effect can be. Where imputations are gravely defamatory and are met with justification or truth defences, a plaintiff runs the risk of a trial of the underlying facts and a finding of truth (at least at a civil standard). In other words, it may result in the plaintiff choosing to put themselves on trial and having to defend their actions.

All prospective plaintiffs ought to be properly appraised of this risk: lest they double down by bringing defamation proceedings and have their reputations left in tatters.

 

Costs of the proceedings

Defamation proceedings are notoriously complex and costly. This has been reported as one of the most expensive defamation matters Australia has seen to date.³² As a result of the appeal being dismissed, Mr Roberts-Smith has been ordered to pay the respondents’ legal costs which are reported to be around $30 million.³³

Whilst this is a good example of investigative journalism being vindicated, even the most well-resourced publishers and broadcasters may not be able to afford to defend cases of this nature (or be able to recover their costs from an individual). That is: even if they can fund a defence and succeed, are they able to recover their costs of doing so against an individual?

Investigative journalism serves a vital role in society, yet cases like this could inevitably discourage media outlets from reporting on serious issues. Faced with the financial and resource burden of legal proceedings, many may be discouraged and avoid tackling matters of public significance.

Conversely, very few plaintiffs have the financial (or emotional) capacity to sustain a case of this kind. Mr Roberts-Smith’s access to substantial resources gave him options that most Australians simply do not have including to pay the costs of the case (at least at first instance).³⁴

 

Conclusion

In hindsight, Mr Roberts-Smith’s choice to pursue this case has proven once again to be a grave and irreversible mistake from a defamation perspective.

Despite the appeal outcome, and the costs consequences, Mr Roberts-Smith has already indicated that he intends to seek special leave to appeal the decision to the High Court of Australia.³⁵

 

1. Roberts-Smith v Fairfax media Publication Pty Limited (No 41) [2023] FCA 555 (Primary Decision).
2. Roberts-Smith v Fairfax Media Publications Pty Limited [2025] FCAFC 67 (Appeal Decision).
3. Primary Decision, [1]-[6].
4. Primary Decision, [1370], [1538], [1847].
5. Primary Decision, [2227], [2607].
6. Defamation Act 2005 (NSW), s 25; Defamation Act 2005 (WA), s 25.
7. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335.
8. Hall Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84, 91.
9. Defamation Act 2005 (NSW), s 26; Defamation Act 2005 (WA), s 26.
10. Defamation Act 2005 (NSW), s 26; Defamation Act 2005 (WA), s 26.
11. Evidence Act 1995 (Cth), s 140(1).
12. Ibid, s 140(2).
13. Appeal Decision, [18].
14. Appeal Decision, [1].
15. Appeal Decision, [27].
16. Appeal Decision, [27].
17. Appeal Decision, [468].
18. Appeal Decision, [615].
19. Appeal Decision, [620].
20. Appeal Decision, [692].
21. Appeal Decision, [759]-[761].
22. Appeal Decision, [757].
23. Appeal Decision, [758].
24. Appeal Decision, [229].
25. Appeal Decision, [159].
26. Appeal Decision, [217] – [219].
27. Appeal Decision, [160].
28. Appeal Decision, [22].
29. Appeal Decision, [23].
30. Appeal Decision.
31. The term was coined after Barbara Streisand commenced proceedings to protect her privacy and supress publication of photos of her Malibu mansion. The proceedings had the reverse effect and caused more attention.
32. Greta Stonehouse, ‘What comes next for war veteran Ben Roberts-Smith after his defamation case was dismissed?’ Australian Broadcasting Corporation (online, 2 June 2023) <https://www.abc.net.au/news/2023-06-02/ben-roberts-smith-defamation-case-what-comes-next/102423220>.
33. Jamie McKinnell, ‘Ben Roberts-Smith will pay defendants’ legal costs in his failed defamation case’, Australian Broadcasting Corporation (online, 29 June 2023) <https://www.abc.net.au/news/2023-06-29/ben-roberts-smith-failed-defamation-costs/102539508>.
34. Nino Bucci, ‘Kerry Stokes to pay costs of Ben Roberts-Smith’s defamation case’ (online, 11 December 2023) <https://www.theguardian.com/australia-news/2023/dec/11/kerry-stokes-paying-costs-ben-roberts-smith-defamation-case>.
35. Ethan Rix, Jamie McKinnel, and Luke Royes, ‘Ben Roberts-Smith loses appeal bid to overturn defamation case loss, signals High Court challenge’ Australian Broadcasting Corporation (online, 16 May 2025) <https://www.abc.net.au/news/2025-05-16/nsw-ben-roberts-smith-defamation-appeal-decision/105297518>.

Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.