Disgraced Ben Roberts-Smith faces war crimes prosecution, huge legal bill and destroyed reputation

Australia’s most decorated soldier Ben Roberts-Smith has spectacularly lost his defamation trial and faces a massive legal bill, possible war crimes prosecution, and career ruin.

Federal Court Justice Anthony Besanko ruled on Thursday that all the claims made by media that Roberts-Smith insisted were defamatory are essentially true.

The ruling comes as the Australian Defence Force chief General Angus Campbell is making a second attempt to strip distinguished and conspicuous medals from senior officers who led Special Forces in Afghanistan. 

Roberts-Smith was said to be among the contenders for having his prized medals – the Victoria Cross and the Medal for Gallantry, both earned in Afghanistan – ignominiously returned.

He faces findings of allegedly breaching the Geneva Convention and the Law of Armed Conflict. 

Justice Besanko also found imputations related to domestic violence had ‘contextual truth’.

He said even though Mr Roberts-Smith’s former mistress Person 17’s evidence was ‘not sufficiently reliable to find an assault had occurred’, the allegations, along with the contention that the ex-soldier was a hypocrite for posing as a DV campaigner, were ‘contextually true’.

The judge’s findings that Roberts-Smith had pushed an innocent villager off a cliff in Darwan, in southern Afghanistan then ordered his execution, and had shot dead another man with a prosthetic leg should encourage the proper investigation of these events.

Also listed by Justice Besanko as true, were Roberts-Smith ordering a young soldier at the Taliban compound Whiskey 108 to shoot an innocent villager, essentially to ‘blood the rookie’.

These are believed to be among  incidents currently under the microscope of the Department of Defence-commissioned Inspector-General of the Australian Defence Force (IGADF) Afghanistan Inquiry.

Known as the Brereton Report, it is probing allegations about possible breaches of the Law of Armed Conflict by members of the Special Operations Task Group in Afghanistan from 2005 to 2016. 

The backfiring of Roberts-Smith’s defamation lawsuit intended to clear his name comes a year after the marathon trial closed following 110 days of explosive hearings which began two years ago and cost a total of $25million. 

Roberts-Smith was bankrolled by Seven Network owner Kerry Stokes to pursue the legal case, and had been working as  Seven’s managing director for Queensland. 

His hopes for returning to the corporate world and motivational speaker circuit are also in doubt. 

Costs will now be awarded against Roberts-Smith as the loser of the trial and he will be asked to pay for the very substantial legal bill of his victorious accusers, Nine Newspapers and Federal Capital Press.

The case has been adjourned until June 29 to allow for a consideration of costs. 

Mr Roberts-Smith, who was not in court for the result, was staying at a $500-a-night resort in Bali leading up to the judgment and was snapped enjoying some time by the pool on Wednesday, Nine Newspapers report. 

Mr Roberts-Smith and now ex-wife Emma at a 2012 with his prized Victoria Cross (above, pinned with his other medals pinned to his uniform) faces being stripped of the award

Ben Roberts-Smith relaxes by the pool at a resort in Bali. The decorated soldier learnt his fate 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 – has been hoping to vanquish the award-winning journalists who branded him a murderer, bully and perpetrator of domestic violence.

In turn, newspaper reporters Nick McKenzie, Chris Masters and David Wroe, were hoping 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.

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, gave evidence during a trial interrupted by the Covid pandemic. 

What was initially meant to be a 10-week trial ballooned, 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, testified against him, as did 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 was 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 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’.