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Former SAS soldier Ben Roberts-Smith committed war crimes
By Michaela Whitbourn and Harriet Alexander
A Federal Court judge has found decorated soldier Ben Roberts-Smith murdered and assaulted unarmed prisoners while deployed in Afghanistan, in a historic victory for the three media outlets at the centre of his multimillion-dollar defamation suit.
Justice Anthony Besanko found The Age, The Sydney Morning Herald and the Canberra Times had proven Roberts-Smith was a war criminal who had also bullied a fellow soldier.
He did not find the outlets had proven the former Special Air Service Corporal committed an act of domestic violence against a lover, but in light of other proven allegations, Besanko found that allegation did not further harm Roberts-Smith’s reputation and his case should be dismissed.
Ben Roberts-Smith outside the Federal Court of Australia earlier in the trial.Credit: Getty Images
Roberts-Smith, who was photographed in Bali on the eve of the judgment, did not appear in court in Sydney on Thursday. His barrister, Arthur Moses, SC, foreshadowed that his client may lodge an appeal.
University of Sydney Professor David Rolph, an expert in defamation law, said the decision marked “a comprehensive victory for the media outlets” and was “a vindication of the journalism in question”.
“Defamation losses have a chilling effect for the media, particularly for serious investigative journalism,” Rolph said.
“This decision should give media outlets some confidence that they can undertake public interest journalism and prevail.
“Australia’s defamation laws have a reputation for being plaintiff-friendly. This case shows that it is possible, sometimes, for publishers to prevail. By pleading truth, the focus of the case was on Roberts-Smith’s conduct.”
The war veteran’s defamation trial against The Age and The Sydney Morning Herald, owned by Nine, and The Canberra Times, now under separate ownership, concluded in July last year after 110 days, 41 witnesses and more than $25 million in legal costs.
It is among the largest and most expensive defamation trials ever conducted in Australia and the first to examine in detail allegations of war crimes against members of the SAS.
Roberts-Smith launched Federal Court defamation proceedings against the media outlets in August 2018 over a series of articles published earlier that year. He alleged the newspapers made a series of false and defamatory claims about him, including accusing him of war crimes.
But in a judgment delivered on Thursday, Besanko ruled that the newspapers had successfully proven the truth of the vast bulk of the claims.
Besanko found Australia’s most decorated living soldier had broken the moral and legal rules of military engagement and was therefore a criminal, and that he had disgraced his country and the army by his conduct in Afghanistan.
The media outlets alleged during the court case that Roberts-Smith was involved in the murder of five Afghan prisoners, contrary to the rules of engagement that bound the SAS. The unlawful executions took place over five days in 2009 and 2012, the newspapers alleged, and they called 20 serving and former SAS soldiers to give evidence.
Roberts-Smith denied all wrongdoing. Besanko found three of the five murder allegations had been proven.
The alleged murders
In a centrepiece allegation in the case, the newspapers alleged Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in Darwan on September 11, 2012, before he was shot dead.
Roberts-Smith maintained there was “no cliff” and “no kick”. The man in question was not a farmer but a suspected Taliban “spotter” reporting on the movement of coalition forces, he said, and both he and a soldier dubbed Person 11 lawfully fired shots at the man in a cornfield.
Besanko found the newspapers had proven Roberts-Smith murdered Ali Jan by kicking him off a cliff and procuring the soldiers under his command to shoot him, and that in doing so he had broken the legal and moral rules of engagement and disgraced his country.
In a second key allegation, the newspapers said Roberts-Smith was involved in two murders during an earlier mission on Easter Sunday, 2009, after two Afghan men were discovered in a tunnel in a compound dubbed Whiskey 108. They alleged Roberts-Smith killed one of the men himself and directed a “rookie” soldier, Person 4, to kill the second man as a form of “blooding” or initiation.
Roberts-Smith told the court there were no men in the tunnel. He said two insurgents, not prisoners, were killed lawfully outside Whiskey 108, including one by him.
Besanko found that Roberts-Smith had committed murder at Whiskey 108 by pressuring a newly deployed and inexperienced soldier to execute an elderly, unarmed Afghan in order to “blood the rookie”. He also found that the media outlets proved Roberts-Smith committed murder by machine-gunning a man with a prosthetic leg, and then took the leg back to Australia and encouraged his fellow soldiers to use it as a novelty drinking vessel.
The newspapers also alleged Roberts-Smith shot a young Afghan prisoner in 2012 and boasted to a fellow soldier that it was “the most beautiful thing I’ve ever seen”. Roberts-Smith denied making that comment and said the prisoner was released.
Lastly, the newspapers alleged Roberts-Smith directed an Afghan soldier, via an interpreter, to shoot another prisoner in 2012 or direct one of his subordinates to do it. Roberts-Smith denied giving that direction.
Besanko found that the newspapers had not proved the substantial truth of either of those two alleged murders.
Domestic violence allegation
The court heard Roberts-Smith had ended a turbulent six-month affair with a woman dubbed Person 17 by the time the first of the newspaper articles was published. The married former soldier gave evidence that he did not object to the use of the word “affair” but he was separated from his wife at the time, a claim disputed in court by his estranged wife, Emma Roberts.
Person 17, whose identity was suppressed by the court, gave evidence that Roberts-Smith punched her on the left side of her face and eye following a dinner in Parliament House in Canberra in March 2018 after she embarrassed him by falling down the stairs while drunk at the venue and bumping her head.
Roberts-Smith vehemently rejected the allegation, and a former Army officer at the dinner said he witnessed Person 17 fall down the stairs and sustain a “very large haematoma on the left side of her forehead above her eye”.
Besanko was not satisfied that Person 17’s evidence was sufficiently reliable to form a finding that the assault had occurred; however, he found the allegation had caused no further harm to his reputation after he had been found to be a war criminal.
Bullying allegation
Roberts-Smith alleged two of the articles made allegations of bullying against him, including that he “engaged in a campaign of bullying against a small and quiet soldier ... which included threats of violence”.
A serving SAS soldier dubbed Person 1 gave evidence for the newspapers and said Roberts-Smith told him in 2006 that “if your performance doesn’t improve on our next patrol, you’re going to get a bullet in the back of the head”.
He told the court he had interpreted the comment as a death threat and “it made me fearful for my own personal safety”. Person 1 alleged Roberts-Smith had bullied and undermined him for years, including pushing him in the chest during a later incident in 2010 and telling him to “get out of my way, c---, or I’ll kill you”.
Roberts-Smith denied all wrongdoing and told the court he had raised legitimate concerns about Person 1’s performance.
Besanko found the news outlets had established the substantial truth of the bullying allegation.
He dismissed Roberts-Smith’s lawsuit.
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