Australia’s most decorated soldier Ben Roberts-Smith will today learn if he will ultimately be remembered as a great Australian hero or a woman-bashing war criminal.
Federal Court Justice Anthony Besanko will deliver his findings in Mr Roberts-Smith’s defamation trial of the century at 2.15pm at the Federal Court after 110 days of explosive hearings which began two years ago and cost a total of $25million.
Mr Roberts-Smith, who doesn’t have to be in court for the result, is staying at a $500-a-night resort in Bali and was snapped enjoying some time by the pool on Wednesday, Nine Newspapers report.
Ben Roberts-Smith relaxes by the pool at a resort in Bali. The decorated soldier will learn his fate this afternoon two years after he launched the defamation ‘trial of the century’ against three Nine Newspapers
The 44-year-old – who received Australia’s highest award for valour, the Victoria Cross, and the Medal of Gallantry – is hoping to vanquish the award-winning journalists who branded him a murderer, bully and perpetrator of domestic violence.
The newspaper reporters, Nick McKenzie, Chris Masters and David Wroe, hope to burnish their reputations as exposers of the truth with a finding that the soldier had lied and committed war crimes, saving their employer a massive payout.
On one hand, the reputation of the Australian Defence Force is at stake, on the other, the future of investigative journalism, particularly at Nine Newspapers and the Canberra Times.
But Justice Besanko’s assessment of the case may not end up an outright victory for either Mr Roberts-Smith or the media outlets he sued.
Ben Roberts-Smith filed a lawsuit in 2018 claiming the Age, Sydney Morning Herald and Canberra Times newspapers made 14 defamatory claims including that he was responsible for six unlawful killings in Afghanistan between 2009 and late 2012.
Ben Roberts-Smith, pictured above in a never-before-seen photo of him on the battlefront in Afghanistan
Ben Roberts-Smith’s ex-wife, Emma Roberts, arrives at court (above) to testify against him in the marathon defamation trial after he sued three newspapers for what he described as ‘heinous’ allegations of war crimes and domestic violence
The claims, along with the allegation that he punched a woman he was having an affair with, were made in articles published in 2018 and initially identified him only by the pseudonym Leonidas, the famed Spartan king.
His army of lawyers, led by veteran defamation barrister Bruce McClintock, SC, and Arthur Moses, SC, (partner of then NSW Premier Gladys Berejiklian) faced up against the media’s legal armoury of six lawyers, fronted by Nicholas Owens, SC.
About 40 witnesses, including Afghani villagers testifying from Kabul via a Pashtru language interpreter based in Canada, would give evidence during a trial interrupted by the Covid pandemic.
What was initially meant to be a 10-week trial began to balloon, with Mr McClintock arguing ‘real damage’ was being done to his client while the proceedings were suspended again and again.
‘His life is, in effect, on hold until this case is over,’ Mr McClintock said.
Mr Roberts-Smith’s ex-wife, Emma Roberts, would testify against him, as would the unidentified woman at the centre of the domestic assault allegation.
Then-Assistant Defence Minister and former SAS troop commander Andrew Hastie gave evidence for Nine Newspapers, former Governor General Quentin Bryce was said to be testifying for Mr Roberts-Smith, but did not.
Ben Roberts-Smith on patrol in Afghanistan where he made six operational tours, his actions winning him the highest award for bravery, the Victoria Cross
Roberts-Smith with another soldier drinking from the prosthetic leg allegedly souvenired from an Afghan shot dead at the former Taliban compound, Whiskey 108
Former Opposition leader Brendan Nelson, a onetime director of the Australian War Memorial, gave evidence on Mr Roberts-Smith’s behalf.
There were three main theatres of conflict in which ‘crimes’ alleged by Nine Newspapers were said to have taken place, and which formed the thrust of the trial.
They were the former Taliban compound dubbed Whiskey 108 in 2009, the southern Afghan village of Darwan in 2012, and Parliament House, Canberra, at a boozy reception hosted by then prime minister Malcom Turnbull, in 2018.
On Easter Sunday 2009, by which time Whiskey 108 had been seized from Taliban control, some Afghan men remained hiding in a tunnel – specifically one old man and another who had a prosthetic leg.
The 2018 media articles claimed the men were simple villagers, not Taliban, and that Mr Roberts-Smith unlawfully killed the one-legged man and it had been souvenired his prosthesis as a drinking vessel back at the Australian Special Operations Base at Tarin Kowt.
Further, they claimed the corporal had directed a young soldier to shoot dead the older man in order to ‘blood the rookie’.
In the period between these alleged incidents and the Darwan matter, Mr Roberts-Smith had acted valiantly on operation in Tizak, in Afghanistan’s Kandahar province.
The citation for his Victoria Cross, presented by Quentin Bryce in 2011, said he acted ‘with total disregard for his own safety’ and drew enemy fire away from his comrades.
During the defamation trial, it would be alleged the VC had created ‘corrosive jealousy’ of Mr Roberts-Smith in the elite Special Air Service, and inspired a ‘war of words’ by fellow soldiers consisting of lies about his actions on the battlefield.
Mr Roberts-Smith and other SAS soldiers arrived at the second major scene of war crime allegations, Darwan, on September 11, 2012, to look for an Afghan government soldier.
Hekmatullah had killed three Australian soldiers at an army base 13 days earlier.
It was alleged by Nine newspapers that during the operation, Mr Roberts-Smith kicked a hand-cuffed innocent villager, Ali Jan, off a cliff and ordered he be shot and that his body be dragged into a cornfield.
The tunnel at the Whiskey 108 compound where Nine Newspapers alleged that Mr Roberts-Smith unlawfully killed a villager, who he claims was a Taliban member
Mr Roberts-Smith and now ex-wife Emma at a 2012 reception for war heroes after he had been awarded the Victoria Cross (above, pinned with his other decorations to his chest)
Mr Roberts-Smith testified that Ali Jan was not innocent, but rather a ‘spotter’, or forward scout for the Taliban, and was carrying a radio.
During the trial, a woman identified only as Person 17 gave evidence about a romantic affair she had with Mr Roberts-Smith and a reception they attended at Parliament House in March, 2018, where she fell down a set of stairs.
Afterwards at their hotel room, she said in evidence, that Mr Roberts-Smith then ‘punched me with his right fist on the left side of my face’ – on the same spot she had sustained an injury in her fall.
Mr Roberts-Smith vehemently denied hitting Person 17, saying: ‘I’ve never hit a woman. I never would hit a woman’.
He said that, of all the Nine Newspapers allegations, that was the one which haunted him the most.
Nine newspapers’ allegations of war crimes were defended by witnesses who claimed Mr Roberts-Smith was an arrogant, bullying elitist with a warped warrior mentality that had made him overstep the bounds of the laws of armed conflict.
The soldier’s lawyer, Mr Moses, claimed Nine Newspapers had published as fact untrue ‘stories that condemned Mr Roberts-Smith as being guilty of the most heinous acts of criminality that could be made against a member of the Australian Defence Force, and indeed any citizen’.
BEN ROBERTS-SMITH TIMELINE
2006: SAS Corporal Ben Roberts-Smith is deployed to Afghanistan for the first of six tours, which will see him return in 2007, 2009, 2010 and 2012.
Easter Sunday, 2009: Ben Roberts-Smith shoots a man with a prosthetic leg at the Taliban base dubbed Whiskey 108. The leg is ‘souvenired’ back to the Australian soldiers’ base, where it is used as a drinking vessel in the unofficial bar, the Fat Ladies’ Arms. Fairfax will later claim this man was an innocent villager and that Roberts-Smith also directed a ‘rookie’ soldier to kill a second man at Whiskey 108 as a form of ‘blooding’ or initiation.
11 June 2010: On an operation hunting for a senior Taliban commander in Tizak, in Afghanistan’s Kandahar province, Roberts-Smith leads an assault against an enemy fortification and engages an insurgent, exposing his own position to draw fire away from members of his patrol who were pinned down. With total disregard for his own safety, he storms the enemy position, killing the two remaining machine gunners, allowing the assault team to gain the initiative.
23 January, 2011: Australian Governor-General Quentin Bryce awards Roberts-Smith his Victoria Cross medal for the Tizak operation in Perth.
11 September, 2012: In a southern Afghanistan village called Darwan, Roberts-Smith and other SAS soldiers look for an Afghan government soldier called Hekmatullah who had killed three Australian soldiers at an army base 13 days earlier. It would later be alleged by Nine newspapers that Roberts-Smith was the Australian soldier who kicked a man, Ali Jan, off a small cliff in Darwan and ordered an Afghan soldier to kill him.
2013: Roberts-Smith leaves the Australian Army. He is named Australian Father of the Year, begins studying for an MBA, and will join the Seven network as managing director, Queensland.
26 January 2014: Roberts-Smith is awarded the Commendation for Distinguished Service as part of the Australia Day honours, and is appointed chair of the Australia Day Council.
2016: The Department of Defence commissions the Inspector-General of the Australian Defence Force (IGADF) Afghanistan Inquiry, known as the Brereton Report, into allegations about possible breaches of the Law of Armed Conflict by members of the Special Operations Task Group in Afghanistan from 2005 to 2016.
June – August, 2018: Journalists Nick McKenzie, Chris Masters and David Wroe publish articles about a ‘warrior’ soldier they call Leonidas, and later identify as Ben Roberts-Smith. They claim he unlawfully killed innocent people in Afghanistan, including that he ‘murdered an unarmed and defenceless Afghan civilian’, that he bullied other soldiers, and that he punched a woman he was engaged in an extra-marital affair with in the face in 2018.
August, 2018: Roberts-Smith files defamation proceedings against Fairfax Media in the Federal Court. The 129-page lawsuit seeking aggravated damages, interest and costs claims he ‘has been greatly injured and his business, personal and professional reputation has been and will be brought into public disrepute, odium, ridicule and contempt’ by articles containing ‘false statements concerning his war service and personal life’.
October, 2018: Fairfax Media/Nine Newspapers files a truth defence, alleging Roberts-Smith was involved in six unlawful killings in Afghanistan, contravening the Geneva Convention, as well as bullying two colleagues and assaulting the unnamed woman with whom he was having an affair.
June, 2021: After Nine drops one of its claims of an alleged ‘execution of an unarmed Afghan’ two weeks beforehand, the Federal Court defamation trial begins before Justice Anthony Besanko in Sydney. Roberts-Smith, 42, who says five killings happened lawfully in battle, is the first witness.
June, 2022: After Covid delays, and 40 witnesses including Roberts-Smith’s former SAS comrades, his ex wife, Emma Roberts, and his former alleged mistress, the marathon 110-day trial costing $25 million comes to an end.
1 June, 2023: Justice Besanko to deliver his findings.