6 June 2023

Ben Roberts-Smith outcome highlights the value of quality journalism

| Ross Solly
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Nick McKenzie and Chris Masters

Nick McKenzie and Chris Masters. Photos: Nine Entertainment.

The fall from grace for soldier Ben Roberts-Smith could not have been more spectacular and more brutal.

Some might ask what was going through his head when he decided to pursue defamation action against the journalists and the media outlets who first aired very serious, and what we now know to be true, allegations about his conduct.

Or course, to not challenge the allegations would have amounted to an admission of guilt. Maybe he thought, as a decorated war hero whose actions and bravery had been celebrated by Australians at all levels, nobody could possibly challenge his standing.

The verdict by Justice Anthony Besanko is vindication of the hard work, diligence and confidence of two of Australia’s most outstanding investigative journalists, Nick McKenzie and Chris Masters. And it could not have come at a better time for the media industry.

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Investigative journalism is a dying art.

Social media, and the short attention span of most of its followers, has simplified and dumbed down much of what passes for journalism today. Media companies who once would invest money and time into supporting long forms of journalism, and the toil and trouble that comes with investigative journalism, are now struggling to see its worth financially.

The success of a media outlet these days is often measured by the number of clicks on a website and the number of followers on social media. More and more, these outlets prefer hiring social media-savvy reporters rather than tried and tested old-school journos who don’t mind getting their hands dirty and treading on a few toes in the process.

For a big story like the Ben Roberts-Smith war crimes investigation, a good journalist would require weeks, maybe months, to collate all the facts, test their credibility, nurture and encourage witnesses, checking every step of the way with lawyers.

Some of these types of investigations may eventually turn up blank. For every successful media investigation, there are always one or two that never make it to print or onto the airwaves. This is the way of this form of media, and why when the type of investigation carried out by Nick McKenzie and Chris Masters not only appears on front pages but then also stares down, and eventually triumphs, over threats of defamation, our industry, and Australians generally, should celebrate.

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Journalists, rightly or wrongly, have a very low standing among the general public. It’s always been that way, but it’s certainly become much worse since leaders like Donald Trump and Jair Bolsonaro arrived on the scene with their catch-cry of “fake news”.

Some of that criticism is entirely justified. But critics need to stop and ask where we would be if we didn’t have tenacious journalists prepared to put in the hard yards to expose people like Ben Roberts-Smith, like the Robodebt scandal, like sports rorts.

So let’s all celebrate this triumph for journalism and hope that it not only encourages more support for investigative reporting but also sends a timely reminder to those in power or positions of influence that you will not always get away with murder.

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Imagine if you’d managed to get one fact of the Folbigg case correct (the spelling of her surname doesn’t count), your comment may hold some water, but…… And there’s also the fact that the DHAAT (that determines who ought to receive any award) were warned against awarding a V.C. to this man, but you know – the country needed a hero to justify its war. Fair cop. But in the end, the facts don’t lie.

The starkest example of media bias and tall poppy syndrome in this country has been the coverage of the Folbigg verdict compared to that of Roberts-Smith. Granted there is new evidence that has come to light that has introduced reasonable doubt in Folbigg’s case but on the balance of probabilities it is still more likely that serial murders did occur as even with the medical conditions the probability of all 4 deaths occurring within hours of each other is vanishingly remote. Yet the media are proclaiming her as exonerated and celebrating her as an upstanding citizen while a VC recipient (who received the honour through entirely legitimate and verified acts of bravery) has been smeared relentlessly just because he’s seen as a masculine caucasian figure.

What a ridiculous comment. None of what you say is occurring in the media and you have the facts of her case wrong. Her children died over the course of a decade, not over 4 hours. It has been found the cause is very likely to have been genetic.

Kathleen, an innocent woman, has been incarcerated for 20 years of her life and you’re comparing the media response to the defence guy?! Please, get some perspective.

Judge Besanko has done us all a very great favour. His exhaustive examination of the case and the fact that he adjudged that not all of the matters had been proved is demonstration of the quality of the judgement.
Australians are rightly appalled that a single corporal (a low rank in the Army) is able to hijack the honour of so many. It is also appalling that so many are happy to excuse his actions as that of one who was under the pressure of war and therefore, we cannot judge.
Well, I can judge having served two tours. So can the many thousands of our troops who have served in theatres of war but have not committed offences such as these.
Australian also should be demanding to know where was the regimental leadership in all of this and why did they not do their jobs and supervise a rogue corporal – or were they mesmerised by the VC?

I make reference to the Yamashita Standard that was used to hang a Japanese General after the war. It was held that although the soldiers were responsible for certain atrocities, he as the General in charge is held responsible even though he himself committed none. If this Standard is to be employed today then perhaps those leaders who led our troops in Afghanistan should also be subject to this same ruling but obviously, this will not happen.

“Contextually true”

Sam Oak seems to think that honesty integrity and truth aren’t important. Each to their own I guess.

Franky in this case we still don’t know what the truth is. The standard of proof in a civil case is not the same as criminal culpability. The only thing that came out of this trial is anybody can claim whatever version of the truth they like. I believe Ben Roberts-Smiths testimony and that’s as equally valid as anyone else’s opinion. You just can’t be sued for having a different opinion which was the case previously – so go ahead and make whatever claims you like!

Bob the impala2:14 pm 06 Jun 23

Sam Oak, the standard for proof of criminal responsibility is higher principally because criminal actions are brought by the State, not by individuals in dispute, and a civil society needs the State to act with great caution given its power. The consequences of criminal culpability include incarceration (and formerly, death) where civil cases have civil remedies, mostly money.

Most ordinary things in this world are decided on the balance of probabilities. That is, one case is found to have the weight of truth against the other. Hence it is not the case that “anybody can claim whatever version of the truth they like” unless that person is somewhat deluded or wildly biassed.

Have you read the key points of Justice Besanko’s judgement? I doubt you would enjoy it.

Bob “balance of probabilities” means it may have a 51% chance of being true. The judge did not provide a likelihood estimate, only that it passed the balance of probabilities test. I’m fine with that because in life a lot of things with 51% certainty do not and have not eventuated.

Bob the impala3:58 pm 06 Jun 23

Have you read the judgement or a summary of the key points, Sam? Courts do not decide defamation cases of this scale on matters of 51%. Close matters are invariably settled, often with a push from the court.

Here are some key findings:
It is substantially true that he ordered murders, war crimes.
He colluded with colleagues to create a deliberate lie to cover up a war crime.
He sent (via another person) threatening letters, which act may constitute criminal offences.
He was not an honest or reliable witness.
He lied.
Complaints of domestic violence were credible though not found substantially true.

You’ll find your “believe what you want” in the last point, not in the prior ones.

So Sam you say you believe in BRS’s testimony so clearly you don’t believe the evidence of the other SAS witnesses who were described as honest and truthful by the Judge. They must be SAS liars.

If throwing mud and hoping some of it sticks is quality journalism I guess a new precedent has been set.

You did read the sentence “a good journalist would require weeks, maybe months, to collate all the facts, test their credibility, nurture and encourage witnesses, checking every step of the way with lawyers.”, didn’t you?

You might not like what they found, but it’s not throwing mud in the hope something sticks when they thoroughly researched their claims.

Megsy had the journalists not done their “research” would the outcome of the trial been any different. Why the three year long case with independent witnesses in court if the journalists had “proved” everything themselves?

The judgement is quite clear Sam Oaks. In his judgement, the judge of one of Australia’s most superior courts has dismissed the defamation suit brought against three journalists and its newspapers by Ben Roberts-Smith.
In his decision, the judge described the allegations by the journalists that Roberts-Smith was a bully who murdered unarmed civilians in cold blood while serving in Afghanistan as substantially proven. The decision is damning of Roberts-Smith who is one of Australia’s most decorated war heroes. The judge described Roberts-Smith as an unreliable witness who gave false evidence, arranged unusual legal fee payments for supportive witnesses and may have perverted the course of justice by threatening a former comrade.
Roberts-Smith’s actions have also been described as one of the most disgraceful periods in Australia’s military history.

Jack that was the judgement, so what? And I am entirely entitled to be able to say there is more than an insignificant chance that the judge’s verdict was incorrect – anything up to a 49% chance based on the balance of probabilities. My point goes to what the media can claim as fact only needs to have a 51% likelihood of truth and when we are making claims of war crimes and murder I don’t think the media should have that power unless they can prove “beyond reasonable doubt” which has not been proved in this case.

@Sam Oak
” I am entirely entitled to be able to say there is more than an insignificant chance that the judge’s verdict was incorrect”

… and on what would you base your belief that the judge’s verdict was incorrect, Sam?

Your exhaustive perusal of the court documents?

Perhaps your meticulous dissection of his honour’s 726-page judgement?

Or is it simply that you are throwing mud at the verdict and hoping that it sticks?

Bob the impala4:03 pm 06 Jun 23

Jack D, JustSaying,I have implied that there is delusion or wild bias in Sam Oak’s opinions here. He invented the 51% as sufficient for “the balance of probabilities” without regard for court process and precedent, and clings to it like a drowning man. Next he will also tell us the precise percentage needed for criminal convictions; but a judge will not.

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