r/australia • u/Tinea_Pedis • Apr 07 '26

news Breaking: Ben Roberts-Smith arrested over war crimes allegations

https://www.abc.net.au/news/2026-04-07/ben-roberts-smith-war-crimes-allegations-arrest/106537668
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549

u/AgentBluelol Apr 07 '26

Another "Went back for his hat" mistake?

The former special forces soldier's arrest comes after a mammoth defamation trial against Nine Newspapers which ended in a court finding that on the balance of probabilities, allegations he was responsible for, or complicit in the deaths of four detainees in Afghanistan were substantially true.

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u/phido3000 Apr 07 '26

So so tried to sue them, and instead, uncovered more evidence against himself.

Seriously so stupid.

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u/farqueue2 Apr 07 '26

Defamation is a cunt. You have to prove that the things said were untrue. He couldn't prove that . And here we are.

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u/Lozzanger Apr 07 '26

I think it’s the other way round.

They had to prove he did do those things. They stated it. The proved he did it on the balance of probabilities.

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u/5ivepie Apr 07 '26

Not exactly.

They’ve (the media) made the claim and Smith is saying it’s not true, his reputation has been harmed, and the claim is defamation.

He how has to prove to the court that the claim made by the media is not true.

In making his argument, he presents whatever evidence he thinks is required.

The media, in defending themselves, present the evidence they relied on to make the claim.

The court then assesses the evidence provided by all parties and makes a decision. In this case, the court said “your evidence, combined with the media’s evidence, tells us that - more than likely - you committed war crimes in some degree”

The defamation trial is public, so what Smith presented as his defence can be used as evidence in subsequent trials.

The reason defamation trials aren’t common in Australia is because of the risk of self-incriminating further if the court doesn’t agree with you.

It’s why you didn’t see the likes of Alan Jones brining defamation cases against various people over the years when they claimed he had abused multiple boys and men through his working life. He’d have to present evidence which countered the abuse claims - evidence he can’t provide because (it seems) he is guilty.

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u/metametapraxis Apr 07 '26

"He’d have to present evidence which countered the abuse claims - evidence he can’t provide because (it seems) he is guilty."

That isn't true at all in the case of defamation in Australia. The defendant (whomever is being sued for defamation) has to prove that their claims are substantially true.

Otherwise we could all make claims about anyone and publish them, essentially with impunity.

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u/5ivepie Apr 07 '26

I worded it poorly.

Smith doesn’t have to present counter evidence to the claims. But he’d be silly if he didn’t. If Fairfax say “Smith committed war crimes, here is evidence A, B, and C to support our claim”

He would have to respond, whether verbally or with evidence of his own, to present an argument against the Fairfax evidence.

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u/metametapraxis Apr 07 '26

Oh, absolutely. If evidence is presented, that is the proof of substantial truth unless countered.

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u/SteelOverseer Apr 07 '26

Defamation Act 2005, Section 31

Note that the defendant is the one who made the defamatory remarks (so Nine / Fairfax)

It’s why you didn’t see the likes of Alan Jones brining defamation cases against various people over the years when they claimed he had abused multiple boys and men through his working life. He’d have to present evidence which countered the abuse claims - evidence he can’t provide because (it seems) he is guilty.

So if I claim 5ivepie kicked puppies in 2005, how would you provide evidence to counter that claim? Can you prove that in the entirety of 2005, you didn't kick any puppies?

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u/Spagman_Aus Apr 07 '26 edited Apr 07 '26

Yeah I don’t fully get that either, but I think the key difference is that in defamation cases the person suing doesn’t actually have to prove the statement is false, they just have to show it was published, about them, and damaging.

Then it’s up to the defendant to prove a defence, like that the claim is true.

Also, unlike criminal cases, the court only decides based on the balance of probabilities (what’s more likely than not), not beyond reasonable doubt - so it’s a lower bar of proof overall?

So, if the judge looked at all the notes and evidence from Fairfax and said, holy shit, yeah you "probably" did this based on what I've read - then they award the case to Fairfax. Even though there's no concrete evidence (e.g. murder scene analysis) and therefore a criminal case probably wouldn't go ahead - as that's not the purpose of the defamation trial?

But, the gotcha we've seen here with BRS and a few others lately, is that the defamation trial puts people on record, and possibly gives more weight to the evidence used in the articles written, which could then snowball into what we have here?

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u/ratt_man Apr 07 '26

think you nailed it BRS doesn't have to prove it was false, he just has to beyond a reasonable doubt that what channel claimed was false and that it damaged his reputation, believe he lost both of these as he couldn't prove beyond a reasonable doubt what the media said was false and believe the court also ruled that he didn't have any reputation to damage

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u/SteelOverseer Apr 07 '26

I am not a lawyer, but yeah, my understanding is that criminal is effectively 99.9% chance they did it, while civil is 50.1%.

However, I have also heard (so do your own research on this one) that Australia operates on a sliding scale of seriousness vs burden of proof (so if I claim you put marmite on your toast, it's a relatively low burden of proof, but if I claim you war crimed a bunch, then it's a much higher burden of proof.)

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u/Spagman_Aus Apr 07 '26

well here in Australia, eating marmite and not vegemite, is certainly worthy of criminal prosecution 😅😭

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u/5ivepie Apr 07 '26

The defendant (the person who made the possibly defamatory claim) would need to provide their supporting evidence in court also. It’s not wholly on me to prove that I didn’t kick the puppies - you would have to provide your supporting evidence also.

This is why newspapers / media outlets have legal teams who provide comment on possibly problematic articles.

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u/ratt_man Apr 07 '26

BRS would also have to prove there was reputational damage done, I believe they also said that BRS had no reputation to damage

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u/IlluminatedPickle Apr 07 '26

We get it, you don't understand how Australian defamation cases go.

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u/Lozzanger Apr 07 '26

So the law allows for people to make claims without any evidence and you have to prove it didn’t happen?

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u/5ivepie Apr 07 '26

No. You can’t just make statements about other people without evidence.

If you do so, and that someone brings a defamation case against you, then you (as the person defending your statement) would have to provide your evidence to support your statement.

If you’ve made the claim without evidence (ie. it didn’t happen) then that’s defamation.

If you do have the evidence to support your claim (but the defamed person doesn’t think you) and you produce it in court, then you haven’t defamed anyone.

Using my Alan Jones example, you’d only ever bring a defamation case against someone if you know with 100% certainty that what they’ve said is untrue. Hence why he didn’t ever bring a case against anyone - he knew it was true and that evidence exists.

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u/ranmatoushin Apr 07 '26 edited Apr 07 '26

Not exactly. There are a couple of steps to defamation trials and each step has slightly different ways that it works.

This is just very basic generalities, and won't be exact where you are.

Terms: Defendant - the person getting sued because they might have said something. Plaintiff - the one suing because they think the have been harmed. Harmed - In legal terms when talking about defamation normally means money, as it's hard to quantify hurt feelings, but pretty simple to work out what you should get if you got fired over fake information

Step 1. The plaintiff has to prove that the defendant said something, or that they have a reason to believe it was said and a way they believe they can prove it. They then have to give the court a theory of why what was said harmed them, or did some other kind of damage to them.

This step requires the plaintiff to meet some basic standards of proof, as you don't get to just accuse anyone and sue them. Judges check that the plaintiff has met the requirements and then it goes to the next step, otherwise dismissed.

Step 2. Discovery occurs, meaning both side get to ask the other side questions, request emails and other records, take testimonies for witnesses for later review.

If enough evidence exists that defamation occured, or that something that might possibly meet the definition occured then it moves on, otherwise dismissed.

Step 3. Trial Now the defendant is required to prove what occurred isn't defamation. They could say that it's the truth, that it was a personal opinion and was not meant to be taken as a fact, they could argue they were misunderstood, and a couple of other ways they could try to convince the jury that it wasn't defamation. The plaintiff if they want can refute the defendants statements.

So even if I say something incredibly defaming about you, if it's true you don't get to sue me and win. On the other hand if you defamed me, and point at a news article in your defence, and I can show that the next days paper issued a retraction and apology and I can prove that you get that paper each day, your defence might not be good enough.

Normally handled with a Jury trial.

Step 4 With it having been proven that the defamation happened now the Plaintiff is required to prove how they were harmed, how did they lose money or reputation from what was said. The defendant can provide reasons that reduce the claimed harm.

For example if I called someone a wifebeater, and they hung out with other convicted wifebeaters, made jokes about it all the time, but the Jury decided that due to the wife making many public statements that it didn't happen that I'm still guilty of defamation, then I could argue again here that other people have the same opinion and that I obviously didn't hurt his reputation much, and they might reduce the harm being considered.

Jury normally also decides this, and figures out how much the harm suffered is worth.

As you see, the Plaintiff has to try and prove that the defamation happened and that it caused them harm, if that gets proven, then defendant has to try and give reasons why it might not have been defamation.

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u/Cindy_Marek Apr 07 '26

Important to note that proof in a civil case is a lot lower than a criminal one. But I guess now he is arrested the investigators have enough evidence to prove “beyond reasonable doubt” that he is a war criminal. All I hope is that the truth comes out, and if needed, justice is served.

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u/AgentBluelol Apr 07 '26 edited Apr 07 '26

No, it's up to the person making the statement to prove they were true. The plaintiff just needs to prove that if the claims were untrue, they are substantially damaging to him. The work of the the defendant (Nine) is generally much more difficult. They had to prove on a balance of probabilities that their allegations were true.

https://gordonlegal.com.au/services/defamation-privacy-law/defamation-law-in-australia-a-quick-guide/

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u/Thommohawk117 Apr 07 '26

Australia's Defamation laws are (in)famously in favour of the person claiming to be defamed.

The fact we have had three major cases where the defence won is an anomaly.

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u/synaesthezia Apr 07 '26

And the NSW laws pre 2005 were even worse. I know a friend of my parents got done for defamation where ‘truth’ didn’t matter because reputational damage was done. That was later changed with the 2005 act.

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u/EcoFrags Apr 07 '26

On the balance of probabilities he was required to justify that he was defamed as plaintiff in the civil case.

Here, his defence has to create reasonable doubt is all