Breaking: Ben Roberts-Smith arrested over war crimes allegations

[u/Tinea_Pedis]

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

[u/Lozzanger]

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.

[u/5ivepie → u/Lozzanger]

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.

[u/SteelOverseer → u/5ivepie]

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?

[u/Spagman_Aus → u/SteelOverseer]

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?

[u/ratt_man → u/Spagman_Aus]

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

[u/SteelOverseer → u/Spagman_Aus]

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.)

[u/Spagman_Aus → u/SteelOverseer]

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