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Arthur Moses, SC, utters the phrase “winged penis” as if holding it with a pair of silicone gloves. Her thick black hair is well parted to one side, her habits impeccable, her legal pedigree immaculate. A former chairman of the NSW Bar Association and former chairman of the Australian Law Council, he has represented the highest profile litigants in the country during his 29 years in the bar.
He now portrays Ben Roberts-Smith, Australia’s most decorated living soldier, and faces the mood of the Special Air Service troops regiment that served in Afghanistan. Evidence of this trial has gone through the most sordid basements of soldiers’ private lives and has brought issues into the public sphere once whispered among veterans. He has broken friendships between the troops, many of whom were called to testify under summons and resented the existence of the trial.
But Moses knows as well as anyone that the evidence heard in the courts is only part of the story. “In 2012, did you see pictures of a winged penis in Tarin Kowt, at the base?” he asks, looking up at the witness.
As Roberts-Smith and The Age, The Sydney Morning Herald and The Canberra Times rushed to what would be the longest and most expensive defamation trial in Australian history last year, there was an intoxicating feeling that anything it could happen. He often did.
The start of the trial was delayed for a year due to travel restrictions and the COVID court. Three months before the trial opened, Roberts-Smith’s wife, Emma Roberts, changed sides and agreed to testify in the newspapers. Two months before the opening, Nine’s attorney, Sandy Dawson, SC, who was closely involved in the case, was forced to retire on health grounds. Two weeks before the opening, former Governor General Quentin Bryce, who had been listed as a Roberts-Smith character reference, decided not to testify. (An unannounced visit from him to his home with flowers is supposed to have hardened his existing reservations.)
One week before the opening, Roberts-Smith filed a lawsuit against his separated wife in Federal Court, alleging that he had passed inside information to Nine’s attorneys, who had the potential to disrupt the entire trial. She denied that this was the case.
A day before the trial, a rival news site posted an attractive photo gallery of a shirtless Roberts-Smith working on the stairs of Doom in Woolloomooloo. EXCLUSIVE: SAS hero Ben Roberts-Smith appears to be in shape during a grueling pre-battle training session to prove he’s NOT a war criminal as he breaks his silence on the “trial of the century” “, said the headline of the Daily Mail.
The prose had nuances of a corset ripper (“the recipient of the Victory Cross seemed at all times the determined warrior as he took off his T-shirt for 20 consecutive sessions of stairs”) and his publication on the eve of the trial pointed to another play that took place behind the scenes. , even as teams of lawyers feverishly prepared for the case.
In one corner was the former SAS soldier accused of murder, domestic violence and bullying, who had done virtue for his unwillingness to take a step back and had been honored for his courage on the battlefield. It was funded by Seven West Media President Kerry Stokes, a self-made billionaire who had long used the courts to achieve his business goals. The reputation of the Australian Defense Force was at stake.
Bruce McClintock, SC, left, with Ben Roberts-Smith out of court on the first day. Credit: Getty Images
Across the ring, award-winning investigative journalists Nick McKenzie of The Age, the Sydney Morning Herald and the Canberra Times, and Chris Masters, before the ABC, each had to persist. against powerful interests. he turned them into giants of his profession, and defense journalist David Wroe (who had since gone to work for then-Secretary of State Marise Payne). They were supported by McKenzie’s employers in Nine. The future of investigative journalism was at stake.
It was not a war crimes trial: it was a defamation suit, filed by Roberts-Smith, for a series of articles in 2018 that, according to him, present him as a war criminal complicit in the murder ยท Of unarmed Afghan prisoners. According to the rules of confrontation that bound the SAS, prisoners could not be killed. He denies all violations. The media seeks to rely on a defense of the truth and alleges that Roberts-Smith was involved in six illegal killings in Afghanistan, including two in 2009 at a site known as Whiskey 108.
If this was a chicken game, neither side blinked.
On June 7, 2021, Roberts-Smith arrived at the Federal Court in Sydney’s Queen’s Square, flanked by his sculptural parents and accompanied by two silks, two minor lawyers, a small army of lawyers, a relations officer and the commercial director of his employer Seven West Media. Nine paired his firepower with three lawyers, including Silk Nicholas Owens, SC, five internal and external lawyers, two senior editors and three journalists to cover the story.
Almost all the country’s media sent journalists to the inauguration. There were Australian federal police officers investigating allegations of war crimes. It was said that a matron woman with her hair in a bun was a superior spy. The Commonwealth sent two lawyers and several lawyers to monitor possible breaches of national security laws. The test became an engine of many moving parts, which often flew independently.
The first unexpected spin-off was sparked by an article in the Australian Financial Review column that mentioned a photograph of Roberts-Smith holding the hand of his lawyer, Monica Allen, while at the Brisbane Botanic Gardens. The image had been published a year earlier by News Corp. Allen’s boss, Mark O’Brien, later admitted that it was “foolish” for the couple to be socializing, although he thought “it’s interesting that by 2020 people are making assumptions about adult friendships.”
Roberts-Smith’s lawyer and friend Monica Allen walking out of court with Seven’s commercial director Bruce McWilliam (far left of the picture). Credit: Janie Barrett
But the AFR’s suggestion that the relationship between Roberts-Smith and Allen could be more than professional surprised Judge Robert Bromwich, the Federal Court judge who ruled on whether Emma Roberts had passed inside information to Nou’s lawyers. Allen had written an affidavit on the matter, and if he had a personal relationship with his client, that should have been revealed, Bromwich said. “I didn’t know anything about it … I feel uncomfortable with the situation.”
Arthur Moses’ rebuttal was a masterstroke. Summoning an urgent hearing that afternoon, he told Bromwich before a full court that it was not only false that Roberts-Smith and Allen were in a personal relationship, but that the suggestion of another Nine colleague was a clear attempt. to generate embarrassing advertising. his client’s lawyers.
“This may have a tendency to try to intimidate or threaten these lawyers, which may in itself constitute contempt of court,” Moses said.
This depiction of the nine newspapers as a picture of thugs appeared at the top of television broadcasts and news sites that night, rather than the saltier hint the judge made of an adventure among the besieged old soldier and his lawyer.
However, neither Bromwich nor most of the media outlets that published this story would have understood that Moses’ reference to “those lawyers” in his total defense of Allen also captured his own personal life. That same day, Moses had received a second text message from the Sydney Morning Herald’s state political editor, Alexandra Smith, asking if she had a relationship with then-NSW Prime Minister Gladys Berejiklian. Rumors of a romance between Moses and Berejiklian had been circulating in political and legal circles for weeks, which raised the old ones since he had previously represented him before the Independent Commission against Corruption. Smith had sent a message to Moses two days earlier when Berejiklian’s office refused to comment.
A photo of Gladys Berejiklian and Arthur Moses SC posted by her sister Mary. Credit: Instagram @mishka_bishka
He ignored the two messages, and the news director of the Herald asked reporters covering the Roberts-Smith trial to arrest him if the opportunity presented itself. But the optics were complicated as they covered a trial in which Moses was litigating against his employer, and after he raised the threat of contempt, it was decided to park the story pending external confirmation.
Two days later, exclusive images appeared in Roberts-Smith’s Sydney Daily Telegraph with her new girlfriend, 28-year-old publicist Sarah Matulin. And just over a week later, the news about Berejiklian and Moses came out via a strategically placed Instagram post from the Prime Minister’s sister, Mary, from “Glad and her boo.”
Ben Roberts-Smith and Sarah Matulin were photographed in a Sydney pub.
Rumors that Roberts-Smith had been involved in war crimes first reached Masters during his 10-year investigation into the Australian Special Forces in Afghanistan for his 2017 book No Front Line. Roberts-Smith was already working as an executive in the Queensland office of Seven West Media. The allegations were strong because the Inspector General of the Australian Defense Force was conducting his own investigation into allegations of war crimes.
So when Masters started asking questions, Seven commercial director Bruce McWilliam suggested to Roberts-Smith that he hire lawyer Mark O’Brien, a notoriously aggressive defamation specialist. Stokes, who was also president of the Australian War Memorial, offered to …