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No Easy Victory

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by Jonathan Holmes

Nine Entertainment, Chris Masters, Nick McKenzie and David Wroe won a famous victory [appeal pending, see below] in the ‘defamation trial of the century’ against Ben Roberts-Smith, VC. Now Masters and McKenzie have each written books about the Flawed Hero who Crossed the Line between lawful and unlawful killing in war.   

ABC ALUMNI chair Jonathan Holmes reviews the books, and reflects on the lessons they have to teach us about investigative journalism, truth-telling, and the cost of a crucial victory.

“A TERRIFIC OUTCOME”? 

“This is really a terrific outcome for investigative journalism in this country. It’ll encourage investigative journalism…”   Well, maybe. But I think Brendan Clift of the University of Melbourne Law School is being over-optimistic. More on the mark is defamation barrister Dr Matt Collins KC:  

“A loss, I think, would have struck a very damaging blow to the preparedness of legacy media — like the ABC, like Nine, like News Limited — to fund and then defend important stories of this kind”, he said.  

He’s absolutely right about that. If the media were ever going to win a defamation action by proving the substantial truth of what they had published, they were going to win this one. A loss would have been devastating, not just for Nine, but for journalism.   

But what Nine’s comprehensive victory in the ‘defamation case of the century’ demonstrates is how difficult and expensive it is to win a case like this.       

ONE COURT CASE, TWO BOOKS  

Chris Masters and Nick McKenzie, the two foremost investigative journalists of their respective generations, collaborated on articles published by Fairfax about war crimes allegedly committed by the SAS’s Corporal Ben Roberts-Smith, VC, MG, known to his mates as BRS – Australia’s most decorated warrior, with his own display in the Australian War Memorial.  

Alas, Masters and McKenzie have found it impossible to co-operate in writing a book about BRS, so now we have two: Nick McKenzie’s Crossing the Line, and Chris Masters’ Flawed Hero: Truth, Lies and War Crimes.

I have read them both.  They are both excellent reads.  A declaration: I have worked with both authors, though only briefly with Nick almost twenty years ago; I was Chris’s EP at Four Corners forty years ago.  

This article will draw some lessons from the Ben Roberts-Smith saga about investigative journalism, about our courts, and about our defamation laws, largely drawn from those books.  

But first, let me briefly compare them.  

If you want to know about the highs and lows, for a journalist, of being a defendant – a ‘respondent’, the Federal Court calls them – in a massive defamation case, read Crossing the Line. We get to hear about Nick McKenzie’s sleepless nights, his lonely runs through Melbourne suburbs as he agonises about what he might have got wrong, his occasional fury (usually misplaced, he admits) at his own lawyers, his sense that his entire career is on the line, his despair when he’s told a key eye-witness might not front up in court, his sweat-soaked anxiety when that witness eventually takes the stand, and no one on either side knows what he’s going to say.

If you want to read a longer, calmer account of the investigation, starting years before McKenzie came on board, and a detailed, forensic description of the trial that occupies half the book, read Flawed Hero. You’ll learn a lot about the law courts, and a lot about investigative journalism, if you do.   What both books make plain is that McKenzie and Masters won because they invested years of their lives, and tens of thousands of dollars of Fairfax’s money – and in Chris’s case, his own too – researching the story; and because Nine Entertainment (which absorbed Fairfax Media after the articles were published) spent tens of millions defending it in court.  

EARNING TRUST  

At the kernel of the story is trust. A handful of the SAS Regiment’s toughest and most battle-hardened soldiers decided to give Chris Masters their trust because he had earned it. He reported on the Afghan War, for Four Cornersand others, for a decade. After his retirement from the ABC he kept going back to Afghanistan. 

In 2010 he was embedded with the regular soldiers of the Royal Australian Regiment. That resulted in a book, Uncommon Soldier, a largely admiring portrait of Australians at war.

Before the book came out in 2011, Chris was embedded again, this time, and uniquely for an Australian journalist, with the Special Forces. That led to a documentary for the Ten Network (after the ABC had turned it down).

In 2014, the ADF agreed to give him access, on terms he could accept, to the special forces’ records. It also gave permission for SAS operators and Commandos, on certain conditions, to talk to him. It took another three years to produce his next book, No Front Line. It was an unvarnished account of Australian special forces’ role in the Afghan War.  

In that book there are hints – no more than that – that Australia’s best-known warrior, Ben Roberts-Smith VC, may have had flaws. It was enough for BRS to send him lawyer’s letters, and for The Australian to attack the book with its habitual ferocity.  

But before and after No Front Line was published, Chris was hearing second or third hand accounts from other SAS soldiers of war crimes committed by Roberts-Smith. He decided they should be pursued.  

THE INVESTIGATION  

It was too big a story for a retired journo. Masters needed the help of a major media organisation. So in 2017 he went to Nick McKenzie at what was then Fairfax newspapers. “I didn’t think there was another reporter in the country who would be as industrious, who would be so determined to take the story forward”, he told me.

It took another year of work, of struggling to persuade reluctant SAS sources to talk to them, of looking for documentary evidence, before they had a story that Fairfax’s editors were prepared to publish.   

One decisive breakthrough was Nick McKenzie’s, backed by Fairfax’s money. He persuaded a freelance Afghan journalist, whom he names ‘Rashid Ghulam’ in his book, to go to the village of Darwan, where Ben Roberts-Smith had allegedly kicked an unarmed, hand-cuffed Afghan captive off a cliff, and then had him executed.  

This was the story Chris and Nick had heard, at second or third hand, from their SAS sources. The victim was nameless, just a ‘PUC’, a person under control. But after visiting Darwan – a risky venture in May 2018, with the Taliban gaining more and more control in southern Afghanistan – ‘Rashid Ghulam’ told Nick that the victim had a name – Ali Jan; an occupation – almond farmer and seller of firewood; a home village, three hours’ walk from Darwan; a family – a wife, Bibi, and seven children, one born after his death.  

Crucially, the villagers who knew Ali Jan told ‘Rashid Ghulam’, unprompted,  that he’d been kicked off a low cliff by a big soldier, and afterwards shot dead, still handcuffed. ‘Ghulam’ had not been given those details by McKenzie. As Nick puts it:  

What were the chances that SAS soldiers had made up a story of a man being kicked off a cliff and that villagers on the other side of the world had conjured up the same story?

Then McKenzie tracked down an eye-witness to the cliff-kicking episode – though ironically, not a person who would give evidence in the trial, years later. His account was enough to convince Chris and Nick – and more importantly, their editors – that the story was true. In June 2018, the Fairfax papers carried a front page splash about a war crime at Darwan, though the perpetrator’s name was concealed by a pseudonym, ‘Leonidas’.

Then, two months later, in August, McKenzie, Masters, and Fairfax’s national security correspondent David Wroe wrote a 4000-word feature naming Ben Roberts-Smith. It contained a whole catalogue of allegations, including that in 2009 he had ‘blooded a rookie’ by ordering a soldier on his first Afghan deployment to murder a PUC, and that he himself had killed another in cold blood. Backed by Kerry Stokes, the majority owner of his employer the Seven Network, Roberts-Smith sued for defamation.

TIME, COVID AND THE BRERETON REPORT

All this is well enough known to those who followed the story closely. What surprised me was how little of the mountain of evidence and the twenty witnesses the respondents eventually amassed to prove their case was known to them when they published the stories.

Much of the additional work was done by Masters and McKenzie. But a lot of it, too, was done by the lawyers. They had to persuade Judge Anthony Besanko that such and such a person had crucial evidence, and should be subpoenaed, that is, issued a notice that they had to give evidence or suffer severe penalty.

Then the lawyers had to talk to the witness’s lawyers, and, if they could, get an agreement that he (or occasionally, she) could be pre-interviewed. Far better to know what a witness you are calling is actually likely to say.

There were hundreds of pages of documentary evidence, thousands of photographs, hundreds of recordings of radio communications – all had to be ploughed through by the legal team, one of whom was an experienced war crimes investigator.

Both authors admit that without the COVID pandemic, they probably would not have won. The trial was originally due to begin in June 2020. But with witnesses unable to leave WA because of border closures, and Sydney in lockdown in 2021, it was postponed for well over a year. It started in June 2021, adjourned, resumed briefly to hear Afghan witnesses by video-link from Kabul; adjourned again; the real kick-off date was not until February 2022.

There’s a gulf between evidence that satisfies journalists and their editors, and evidence that can sustain the burden of proof in a court. In June 2020, Masters and McKenzie had enough for the first, but – they both admit – probably not for the second.

Then, in November 2020, came the publication of the Brereton Report, the result of four years’ sleuthing by the Assistant Inspector-General of the ADF, Justice (and army reserve Major-General) Paul Brereton. His report named no names; but he found that 39 Afghans may have been unlawfully killed by 25 current or former Australian soldiers in circumstances that, if proven, would amount to war crimes.

Brereton Report

That report changed the mood of the country. The Australian, for example, which had kept up a ferocious attack on Masters and McKenzie based shamelessly on quotes and drops from the Roberts-Smith camp, changed tack days before the report came out. A ‘reverse ferret’, Chris calls it in his book.

The national broadsheet doesn’t come well out of the affair. As Chris pithily puts it:

Murdoch’s papers lived in a world of select leakage; conditioned to that mode of reporting, they could not compete. It was as if they had forgotten, or surrendered, the key to investigative journalism.

Elsewhere he says that he had always thought the job of journalism was to speak truth to power. The Australian, he says, seems to think it’s the reverse.

Kerry Stokes’s West Australian comes off, if anything, worse. It supported Roberts-Smith, and attacked Masters and McKenzie, for years. But not once, Chris tells me, did he ever get a call from the West offering him the right of reply.

But much more important than the media’s reverse ferret was a legal victory. Nine’s lawyers were able to convince a federal judge that they should be given access to the ‘potentially affected person’ notices sent by the Brereton inquiry to alleged perpetrators – particularly the PAP sent to Ben Roberts-Smith: hundreds of pages of evidence against him, some of it from soldiers that Masters and McKenzie had been unaware of. Of course, they could publish none of this. But five crucial witnesses were eventually added to their armoury.

So the extra time COVID bought Nine’s defence team was vital. As Chris writes near the end of Flawed Hero:

Let’s say we had been denied those temporal advantages – the additional witnesses, the PAPs, the finessing – and we had lost. The journalism would have been declared not good enough. Yet we were not wrong.

‘THE GUNSMITH’

Even when the trial restarted, there were moments of acute anxiety – none more anxious than when the man the court called Person 4, McKenzie calls ‘Jason Andrews’, and Masters nicknames The Gunsmith, took the stand.

He was the man, Masters and McKenzie believed, who as a ‘rookie’ in 2009 had been ordered by Ben Roberts-Smith to shoot a PUC in a compound code-named Whisky 108. He had complied. He had been ‘blooded’.

Three years later, at Darwan in 2012, The Gunsmith had been Ben Roberts-Smith’s deputy patrol leader. He had described to other soldiers how BRS had kicked a handcuffed PUC down a cliff and had then ordered a third member of the patrol to shoot him dead.

But The Gunsmith had refused to talk to Nick and Chris. He had refused to talk to their lawyers. He had fought alongside Roberts-Smith for years, including at the battle for which BRS was awarded his VC. Like almost all the other witnesses, he had been subpoenaed to appear in court against his will.

Would he tell the truth? The other soldier on the scene, the one who executed Ali Jan, would support Roberts-Smith’s version of events through thick and thin. If The Gunsmith did too, they would lose.

He didn’t. He doggedly repeated the version of events he had previously described to his SAS mates. Then he told the court how BRS had later boasted about what he had done.

That gave rise to one of the memorable moments of the long trial, when an incredulous Arthur Moses SC, for BRS, asked The Gunsmith:

Moses: Is that what he said: “I kicked the individual off the cliff”? Person 4: No, he didn’t say that. Moses: What did he say? Person 4: “I kicked the cunt off the cliff.”

The Gunsmith was not forced to give evidence about what he had seen and done at Whisky 108 in 2009, on the grounds that he might incriminate himself. As it turned out, he wasn’t needed – the respondents had enough other evidence to satisfy the judge that their account of two unlawful killings on that day was substantially true.

THE COST OF DEFENDING THE TRUTH

So what does the reader come away with? Well first, for this reader at least, what an appalling experience it is to give evidence in a contested trial of this kind. Witness after witness, sometimes for days at a time, is accused of lying, of betraying their mate out of jealousy, or to save their skins, or of being too affected by PTSD to remember events with clarity.

It’s true, as both counsel pointed out in their closing addresses, that the witnesses for one side or the other were lying. They could not possibly all have been honest witnesses. Justice Besanko decided that the liars were on BRS’s side.

But even for those who were telling the truth, it must have been a horrible experience. And yet, they did it. As both Nick and Chris have said many times, those soldiers are the real heroes of the affair. In the view of Andrew Hastie MP, an SAS Captain in 2012 and one of the few witnesses whose real name can be used, they salvaged the future of the regiment.

Many of those men are proud that they were able to hang tough in the witness box, as they had so often done on the battlefield. For them, telling the truth was cathartic. Others wish, still, that they had had nothing to do with the affair.

My next impression: that it was fortunate for Masters and McKenzie that their lawyers decided to rely on a truth defence. That meant that they did not have to take the stand themselves, and face withering, scornful, demeaning cross-examination for days on end.

That’s what would have happened if Nine had tried to rely on a qualified privilege defence. The respondents would have had to satisfy the court that publication was “reasonable in the circumstances” – and among the circumstances would have been the evidence they had at the time of publication. What seems “reasonable” to a journalist has seldom seemed “reasonable” to a judge. The qualified privilege defence has hardly ever succeeded in media defamation actions – especially in the Federal Court.

Perhaps they would have been better off if they had been able to use the so-called “public interest defence” in the newly amended Uniform Defamation Act, which hadn’t been passed at the time of publication.

Well, maybe. All media defendants have to do now is to satisfy a court that they “reasonably believed” that publication was in the public interest.

But the tests the new law asks the court to apply are not much different from those in the old qualified privilege defence.

[Not long after this review was first published, there was a test of the new public interest defence, when the ABC tried to defend the publication of an online article which allegedly accused former Commando Heston Russell's platoon of murdering a Person Under Control (though Russell was not named in the original story). The ABC lost the case]

In this case, Nine relied on proving the truth of their allegations, on the balance of probabilities. And they won – thanks to a judge whom Chris described to me as “massively on top of” a hugely complex case. But there’s still an appeal to come, and the Full Bench of the Federal Court has completely overturned a finding in favour of the media as recently as July last year.

With so much hanging on the primary judge’s view of the credibility of witnesses – judgments that appeal courts are usually reluctant to reverse – it seems unlikely in this case that Justice Besanko’s magisterial, 700-page judgment will be overturned.

If it isn’t, the case will prove to have been a triumph for courageous investigative journalism. But at such a cost that one wonders how many media organisations, in these cash-strapped days, will want to take another such risk.

The upshot: don’t let anyone tell you that life will be any easier for investigative journalists in Australia than it has ever been. Especially if you don’t have years of your life, and millions of dollars of big media money, to commit to revealing and defending the truth.


Jonathan Holmes is a former host of ‘Media Watch’ and chair of ABC Alumni. 


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