Ben Roberts-Smith was involved in killing unarmed prisoners while serving with the elite Special Air Service in Afghanistan, a judge has ruled.
The Victoria Cross recipient has lost his defamation action against Nine newspapers in a judgment that ends what was dubbed the ‘trial of the century’.
Federal Court Justice Anthony Besanko delivered his findings in Sydney on Thursday afternoon after a marathon trial which ran over 110 days and cost an estimated $25million.
The judge dismissed Mr Roberts-Smith’s legal action after finding the newspapers had proven some of the war crimes allegations they made against him.
He found the publisher had proven the ‘substantial truth’ of the most serious claims against Mr Roberts-Smith in relation to two operations in which three unarmed Afghans were killed.
The newspapers had conveyed 13 of the 14 imputations Mr Roberts-Smith said were defamatory but their defence, based largely on truth, was successful.
Ben Roberts-Smith was involved in killing unarmed prisoners while serving with the elite Special Air Service in Afghanistan, a judge has accepted
After the decision, reporter Nick McKenzie, who drove the newspapers’ coverage of Mr Roberts-Smith’s conduct in Afghanistan tweeted: ‘Justice’. He is pictured centre with colleague Chris Masters (right)
While he did not accept the newspapers had established every murder allegation, they had shown enough such killings had taken place to dismiss the lawsuit.
Judge Besanko also found the publisher had not proven Mr Roberts-Smith assaulted his mistress but could nonetheless rely on a defence of ‘contextual truth’.
Because he had accepted the other war crimes allegations, Justice Besanko said Mr Roberts-Smith’s reputation was not further harmed by the domestic violence claims.
After the decision, reporter Nick McKenzie, who drove the newspapers’ coverage of Mr Roberts-Smith’s conduct in Afghanistan, tweeted: ‘Justice’.
Justice Besanko found that on the balance of probabilities Mr Roberts-Smith kicked a prisoner off a cliff at Darwan and ordered another soldier to shoot the injured man dead.
He accepted Mr Roberts-Smith murdered a one-legged insurgent at a compound called Whiskey 108 during another mission on which he also ordered an elderly Afghan found hiding in a tunnel to be executed.
Justice Besanko’s rulings bring to an end the longest and most expensive defamation trial in Australian history.
Mr Roberts-Smith, who was not in court to hear the verdict, has been staying at a $500-a-night resort in Bali and was photographed lying poolside on Wednesday.
The 44-year-old launched a defamation action against three Nine Entertainment Company newspapers after he was branded a murderer, bully and perpetrator of domestic violence.
Mr Roberts-Smith claimed The Age, The Sydney Morning Herald and Canberra Times made 14 defamatory imputationsclaims including that he was responsible for six unlawful killings in Afghanistan between 2009 and late 2012.
Australia’s most decorated soldier has waited more than five years to learn whether he would ultimately be remembered as a battlefield hero or a woman-bashing war criminal
Ben Roberts-Smith relaxes by the pool at a resort in Bali on Wednesday. The decorated soldier finally learnt the outcome of his defamation action against Nine newspapers on Thursday
He was also accused of bullying other soldiers in the Special Air Service Regiment and of assaulting a mistress in 2018 at a Canberra hotel.
Named in the action were reporters Nick McKenzie, Chris Masters from the Herald and Age and David Wroe from the Canberra Times.
The claims against Mr Roberts-Smith were made in a series of articles published in 2018 and initially identified him only by the pseudonym Leonidas, the famed Spartan king.
When Mr Roberts-Smith sued, Nine stood its ground and alleged he had murdered or was complicit in the murder of six Afghan prisoners. During the court case the publisher accepted it could not prove one of the alleged murders.
Nine called witnesses who said Mr Roberts-Smith was an arrogant, bullying elitist with a warped warrior mentality that made him overstep the bounds of the laws of armed conflict.
Ben Roberts-Smith is pictured in Afghanistan where he made six operational tours, his actions winning him the highest award for bravery, the Victoria Cross
Mr Roberts-Smith denied every allegation against him, maintaining he had only ever acted with honour and in the best traditions of the Australian Army.
Mr Roberts-Smiths’ legal team was led by Bruce McClintock SC with Arthur Moses SC. The publishers were represented by Nicholas Owens SC.
The trial commenced in June 2021 and was meant to last about 10 weeks but was beset by delays due to Covid-19, in particular border closures. Final submissions were heard in July last year.
In his closing address, Mr Moses had said Nine had no proof to support its allegations and no basis upon which to accuse his client of being a war criminal.
‘[Nine] published allegations and stories as fact 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,’ he said.
‘It depends upon recollections of evens that occurred during missions more than ten years ago…
‘Recollections which are contradicted either by their own witnesses, our witnesses and Defence Force documents’.
Among those to give evidence for both sides were former and serving SAS members who appeared under pseudonyms and gave conflicting versions of events in Afghanistan.
Mr Roberts-Smith’s ex-wife, Emma Roberts, testified against him, as did ‘Person 17’, the woman who claimed he assaulted her in a Canberra hotel while they were having an affair.
Among Ms Roberts’ claims was that her former husband had hidden files on a USB stick he buried in a child’s lunchbox in the backyard of their marital home.
In the background was the reputation of the Australian Defence Force, particularly its Special Forces operators, and the threat of criminal charges against Afghanistan veterans.
A four-year inquiry by the Inspector-General of the Australian Defence resulted in damning report published n November 2020.
Justice Paul Brereton evidence of 39 unlawful killings of civilians or prisoners by 25 Australian Special Forces soldiers serving in Afghanistan from 2009 to 2016.
Two engagements in Afghanistan attracted the most attention during the Roberts-Smith trial. There was the storming of the Whiskey 108 compound at Kakarak in April 2009 and the killing of a prisoner at Darwan in September 2012.
Nine alleged Mr Roberts-Smith murdered an Afghan prisoner with a prosthetic leg during the battle at Kakarak. He said he lawfully shot dead an armed insurgent.
Ben Roberts-Smith is pictured with partner Sarah Matulin at an Anzac Day dawn service
Mr Roberts-Smith is pictured with then wife Emma at a 2012 reception for military and civilian heroes in London
Mr Roberts-Smith also denied ordering a junior SAS member to kill a second Afghan in a ‘blooding’ custom during the same operation. Instead, he said an SAS trooper shot an insurgent armed with a machinegun.
It was not disputed that another soldier took the dead Afghan’s leg back to the SAS base at Tarin Kowt where it was used as a drinking vessel.
The operation at Darwan began with a search for an Afghan soldier called Hekmatullah who had shot dead three Australians at their base 13 days earlier.
Nine alleged Mr Roberts-Smith, a 202cm tall corporal, kicked a hand-cuffed villager, Ali Jan, off a cliff and ordered he be shot before his body was dragged into a cornfield.
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. He said there was no cliff, no kick, and another SAS member lawfully killed him.
Nine alleged Mr Roberts-Smith also shot a young Afghan prisoner with a pistol after he was captured at Fasil in November 2012 and described the killing as ‘the most beautiful thing I’ve ever seen’.
Mr Roberts-Smith’s ex-wife, Emma Roberts, arrives at court to testify against her former husband in his marathon defamation trial
The publisher further alleged Mr Roberts-Smith ordered an Afghan soldier to execute another prisoner in October the same year. Justice Besanko found Nine had not established a truth defence to the allegations over those two deaths.
Nine accepted it could not prove Mr Roberts-Smith directed a comrade to kill a prisoner in a separate 2012 incident.
Between the Kakarak and Darwan engagements, Mr Roberts-Smith’s actions in a battle at Tizak in June 2010 earned him the Victoria Cross.
Mr McClintock said that award had led to ‘corrosive jealousy’ among some of Mr Roberts-Smith’s comrades and led to them telling lies about his battlefield conduct.
‘This is a case about courage, devotion to duty, self-sacrifice and perhaps most important of all, surpassing skill in soldiering,’ Mr McClintock said at the start of the trial.
‘On the other hand, Your Honour, it’s a case about dishonest journalism, corrosive jealousy, cowardice and lies.
‘It’s also about how a man with a deservedly high reputation for courage, skill and decency… had that reputation destroyed by bitter people jealous of his courage and success as a solider, particularly his Victoria Cross, aided by credulous journalists.’
Roberts-Smith is pictured with another soldier drinking from the prosthetic leg souvenired from an Afghan shot dead at a Taliban compound dubbed Whiskey 108
Mr Roberts-Smith said being awarded the Victoria Cross had been an honour but was also a cross he had to bear for the rest of his life.
‘Because for all of the good that is has brought me and has enabled me to do… it has also brought me a lot of misfortune and pain,’ he told the court.
‘As soon as you become a tall poppy that gives people the opportunity to belittle you and drag you down and undermine you, and use that award against you out of pure spite.’
While Mr Roberts-Smith denied each and every one of the war crime allegations levelled against him, he seemed even more perturbed by the claims of domestic violence.
Person 17, with whom he had an affair outside his marriage to wife Emma, gave evidence Mr Roberts-Smith had assaulted her in March 2018 after a reception at Parliament House.
She had been drunk at the event and fallen down a flight of stairs before returning to a hotel room where she claimed Mr Roberts-Smith punched the left side of her face – the same spot she was injured in the fall.
Mr Roberts-Smith is pictured meeting Queen Elizabeth II at Buckingham Palace shortly after he was awarded the Victoria Cross in 2011
Mr Roberts-Smith denied hitting Person 17, saying: ‘I’ve never hit a woman. I never would hit a woman’.
When asked by Mr McClintock how he thought he was viewed by the public, Mr Roberts-Smith referred the ‘deplorable’ claim, rather than the allegations of war crimes.
‘Now I walk down the street, people will look at me,’ he said. ‘The first thing I think of is that they think I hit a woman.’
Mr Roberts-Smith stood down as general manager of Network Seven in Queensland before the trial commenced.
Seven West Media’s owner, Western Australian billionaire Kerry Stokes, extended a multimillion-dollar line of credit to his high-profile employee to run the action.
Mr Roberts-Smith provided his Victoria Cross and other battlefield decorations including his Medal for Gallantry as security for the loan.
Mr Stokes has said in the event Mr Roberts-Smith could not repay the money he would donate the medal group to the Australian War Memorial.
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