The Ben Roberts-Smith appeal, a judgment a year in the making
It is the judgment a year in the making. After a 10-day appeal hearing last year and a surprise bid this year to introduce fresh evidence in the form of a 'secret recording', Ben Roberts-Smith will find out on Friday if he has won his bid to overturn his devastating defamation loss.
The former Special Air Service corporal claims Federal Court Justice Anthony Besanko fell into legal error in a landmark decision in 2023 that dismissed a multimillion-dollar lawsuit against The Age and The Sydney Morning Herald.
Besanko found Roberts-Smith was complicit in the murder of four unarmed prisoners while deployed in Afghanistan between 2009 and 2012.
The Victoria Cross recipient has always maintained his innocence. Besanko's decision was made to the civil standard of the balance of probabilities rather than the higher criminal standard of beyond reasonable doubt.
The appeal hearing ran for 10 days in February last year and the parties had been awaiting the decision for more than a year.
The Full Court of the Federal Court will deliver its decision at 10.15am on Friday.
Top silk Bret Walker, SC, acting for Roberts-Smith, told the appeal court last year that 'the heart of our case' was that 'weight is to be given to the presumption of innocence'.
He said the evidence marshalled by The Age and The Sydney Morning Herald in defence of the lawsuit fell short of the 'exactness of proof' that was expected.
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Hughes remained tight-lipped for almost 60 years. It is amazing that, in the more than 20 years that his statement has been on the public record, no one noticed it. He also made a second statement, alluding to a cover-up, but that too passed unnoticed. Vivian's affidavit also confirmed that some nurses had been forced to act as comfort women. After reading her affidavit, Hughes reported, 'one knows exactly how they had been subject to indescribable conditions by Japanese officers who were using Dutch Club for this activity'. There is no doubt that Vivian Bullwinkel was not only brutally violated, she was forced to suffer in silence all her life by a succession of men who thought they knew best. She wanted a voice and I am privileged to give it to her. There are sure to be some who would prefer that such a story be left untold, but to continue to deliberately air brush events that are uncomfortable truths, serves no purpose but to subvert our wartime history. I like to get to the heart of the matter. All my books have uncovered a story that was not known before. Truth suppressed, facts buried, for many and varied reasons. The families of the nurses have a right to know. Vivian wanted them to know. To continue to deny the existence of an atrocity, hidden for so long, protects no one but the perpetrators.
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The story she told for the rest of her life was one of noble courage, of nurses holding hands, calmly and silently marching into the sea, until cut down by machine gun fire. Fifty years after the event, many people interested in this wartime incident began questioning the veracity of Bullwinkel's account, as the Japanese responsible for the massacre were from the same unit that had raped and murdered British and Chinese nurses in Hong Kong. Japanese historian Yuki Tanaka was even brave enough to suggest that Vivian 'did not tell the truth' at the International Military Tribunal in 1946, to save her dead colleagues from 'the disgrace of being known as victims of rape'. It was not until 2019, building on forensic detective work by writer Barbara Angell and journalist Tess Lawrence, in whom Vivian had confided, that I amassed sufficient evidence, some of it from Vivian herself, revealed in my book Angels of Mercy, to show that the nurses had been raped before being killed, and that the scene on the beach had been horrific. Far from calm acceptance of their fate, the nurses had run for their lives, screaming, some only partially clad and at least one killed by a sword blow to the head. When The Sydney Morning Herald reported my 2019 findings when the book was released, there were naysayers who refused to believe it. They also refused to believe that Vivian had been gagged, although she had also told Lawrence that being forced to remain silent had caused her great emotional anguish. However, the article aroused international interest, and several people contacted me. A former employee of the (now) Department of Veterans' Affairs, revealed that Bullwinkel's files had been 'more closely guarded than the nuclear codes' because 'she had been raped by the Japanese on Bangka Island'. A female army officer reported that in the early 1990s, when chatting to Vivian about her forthcoming biography, published in 1999, she confided that her biographer was refusing to allow her to tell all the facts, to let the truth be known. When asked, 'Well, what is the truth?' Vivian replied, 'we were not just marched into the sea. We were raped and tortured, and then we were marched into the sea'. She told a similar story to a friend, a fellow ex-POW and a police officer, who had suffered terribly on the Burma-Thai railway. Despite her wish to have 'all the facts' revealed, Vivian, by now in failing health, was denied this right by her biographer, who had simply repeated the oft told, censored story. Seven months after publication, death silenced her forever. She died of a heart attack on July 3, 2000, aged 84. Determined to give her the voice she had been so long denied, I began an investigation to determine who had shut her down, and when. Loading The gagging had begun in 1945 with an order issued by Lord Mountbatten's South-east Asia command, forbidding any recovered prisoner of war from making any statement without military clearance. As soon as it was known that Australian nurses had been recovered from a prison camp in Sumatra, an Australian officer was dispatched to Singapore, where he prepared a statement that Vivian signed. It mirrored the sanitised version of the massacre which, by this time, had been published worldwide. The Australian military and government believed that the public should be shielded from the harsh realities of war, but determining who had silenced Vivian was going to be a challenge. However, blessed with a knowledge of how war crimes units operated, I took a punt and was rewarded when I came across a lengthy statement by Francis Hughes, a war crimes investigator. It was a gift from heaven – the missing piece, which vindicated everything Vivian had said. Hughes, who had served in a highly secret wartime unit, applied for service with 1 Australian War Crimes Section. Based in Singapore, his task was to sift through affidavits documenting atrocities to extract data for use by the prosecution. In due course, he came across one from Vivian, not the sanitised version of events but one given to war crimes investigators in which she stated all the facts. Horrified, he sought advice from his superiors who, on learning that the nurses had been subjected to rape that was 'continuous and shocking', decreed that the details should never be disclosed, out of consideration for their families and that no one, including Vivian, who knew the truth, must ever reveal it. Hughes remained tight-lipped for almost 60 years. It is amazing that, in the more than 20 years that his statement has been on the public record, no one noticed it. He also made a second statement, alluding to a cover-up, but that too passed unnoticed. Vivian's affidavit also confirmed that some nurses had been forced to act as comfort women. After reading her affidavit, Hughes reported, 'one knows exactly how they had been subject to indescribable conditions by Japanese officers who were using Dutch Club for this activity'. There is no doubt that Vivian Bullwinkel was not only brutally violated, she was forced to suffer in silence all her life by a succession of men who thought they knew best. She wanted a voice and I am privileged to give it to her. There are sure to be some who would prefer that such a story be left untold, but to continue to deliberately air brush events that are uncomfortable truths, serves no purpose but to subvert our wartime history. I like to get to the heart of the matter. All my books have uncovered a story that was not known before. Truth suppressed, facts buried, for many and varied reasons. The families of the nurses have a right to know. Vivian wanted them to know. To continue to deny the existence of an atrocity, hidden for so long, protects no one but the perpetrators.
