Ben Roberts-Smith case a warning to others

Truth is the primary defamation defence

defamation defence

The number one defence to any claim of defamation, is that the defamation is true.

And the number one piece of advice any lawyer can give a potential client is do not commence defamation proceedings unless you are 100% certain the other side cannot prove the defamation true.

It must also be kept firmly in mind, that the defence does not have to prove that the defamation is true beyond a reasonable doubt. They only have to prove that it is more probable than not that the matters are true.

It is arguable that if Ben Roberts-Smith had publicly denied the allegations made against him and worked positively to rebuild his public image then it is likely that the media storm would have ultimately blown over and he would have got on with his life. The allegations would remain as allegations only.

By bringing defamation proceedings he has now had a court, after examining evidence, conclude, on the balance of probabilities, that he:

  • murdered an unarmed man by kicking him off a cliff and procuring soldiers under his command to shoot him.
  • broke the moral and legal rules of military engagement and is therefore a criminal.
  • committed murder by pressuring an inexperienced SAS trooper to execute an elderly, unarmed Afghan to “blood the rookie”
  • committed murder by machine gunning a man with a prosthetic leg.
  • was so callous and inhumane that he took the prosthetic leg back to Australia and encouraged other soldiers to use it as a novelty beer drinking vessel.
  • authorised the execution of an unarmed Afghan by a junior trooper, while he was deputy commander of an SAS patrol in 2009.

A successful appeal is his last resort

Unless he is successful at an appeal, these findings, made by a court, totally destroy his reputation beyond salvageability. There is no coming back from findings of that nature.

It is arguable that they could also lead to more serious consequences, such as an investigation of potential criminal behaviour and a criminal prosecution. That said though, it must be remembered that the criminal standard of proof is much higher.

In short, sometimes, no matter how wronged you feel, it is better to let things go and focus on rebuilding rather than risk damaging your reputation beyond repair.

If you believe that your reputation suffered damage by UNTRUE allegations, contact our defamation lawyers today.

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Paul Gilchrist

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Sydney NSW 2000

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