Ben Roberts-Smith case LIVE updates: Major victory delivered to newspapers as former SAS soldier’s defamation case dismissed; some war crime, bullying allegations proven

We’re sorry, this feature is currently unavailable. We’re working to restore it. Please try again later.

The Sydney Morning Herald

Subscribe

The Sydney Morning Herald

Advertisement

Ben Roberts-Smith case LIVE updates: Major victory delivered to newspapers as former SAS soldier’s defamation case dismissed; some war crime, bullying allegations proven

Key posts

Pinned post from

War criminal and bully: the judge’s findings

By Michaela Whitbourn

Justice Anthony Besanko found the newspapers had proven that Roberts-Smith was a war criminal who was involved in the unlawful killing and assault of unarmed Afghan prisoners.

Ben Roberts-Smith outside the Federal Court in Sydney last year.

Ben Roberts-Smith outside the Federal Court in Sydney last year.Credit: Kate Geraghty

He also found Roberts-Smith bullied a fellow soldier.

The following meanings were found by the judge to be substantially true:

  • Roberts-Smith murdered an unarmed and defenceless Afghan civilian, Ali Jan, in September 2012 by kicking him off a cliff and procuring the soldiers under his command to shoot him.
  • He broke the moral and legal rules of military engagement and is therefore a criminal.
  • He disgraced his country, Australia, and the Australian army by his conduct as a member of the SAS in Afghanistan.
  • He committed another murder on Easter Sunday, 2009, by pressuring a newly deployed and inexperienced SAS soldier to execute an elderly, unarmed Afghan in order to “blood the rookie”.
  • He committed a third murder by machine-gunning a man with a prosthetic leg on the Easter Sunday mission.
  • He was so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel.
  • As deputy commander of the 2009 SAS patrol on Easter Sunday, he authorised the execution of an unarmed Afghan by a junior trooper in his patrol.
  • He bullied a fellow soldier, Person 1.
  • In 2010, he bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off.
  • As patrol commander in 2012 he authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat.
  • He assaulted an unarmed Afghan in 2012.

Besanko did not find the newspapers had established that Roberts-Smith committed an act of domestic violence against a former lover. However, he found the newspapers could rely on a defence known as contextual truth in relation to that allegation.

Under this defence, the newspapers argued that some of the articles conveyed the following meanings:

  • Roberts-Smith broke the moral and legal rules of military engagement and is therefore a criminal.
  • He disgraced his country, Australia, and the Australian army by his conduct as a member of the SAS in Afghanistan.

The newspapers argued successfully that those meanings were substantially true and that his reputation could not have been further harmed by the publication of the domestic violence allegation.

Latest posts

Who picks up the bill?

By David Estcourt

With the case’s legal costs estimated to be approximately $25 million, who is going to pick up the bill remains unresolved, but part of it could be paid by entities linked to Seven boss Kerry Stokes.

There are two financial aspects to this case: the damages sought by Ben Roberts-Smith and the total costs of the litigation. The decision means Roberts-Smith is not entitled to any damages.

In most cases in the Federal Court, the unsuccessful party is ordered to pay part of the legal costs of the successful party. The amounts can vary substantially, depending on the costs of the case, but can be thousands, to hundreds of thousands or millions of dollars.

Who will pay what will be decided at a later date and depend on potential appeals of the decision and what both parties have to submit about the costs they incurred during the case.

As Seven’s boss, Stokes has supported Roberts-Smith throughout the trial and entities associated to him have funded his legal costs.

Now, Nine Entertainment, the owner of this masthead, have indicated they are considering seeking costs from “third parties”.

‘Then the screams started’: The echo of Ali Jan’s story

By David Estcourt

One of the central allegations made by this masthead and found proven by Federal Court Justice Anthony Besanko is that Ben Roberts-Smith kicked an unarmed and handcuffed Afghan prisoner, farmer Ali Jan, off a cliff in the village of Darwan in 2012 before he was shot dead.

Throughout the case, Jan’s story has consistently been revisited in evidence, with the newspapers calling SAS and Afghan witnesses to support that account.

“Ali Jan was the man kicked off the cliff. Ali Jan was a father, Ali Jan was a husband. He has children who no longer have a father. He has a wife who no longer has a husband,” Nick McKenzie said outside court.

Here is a refresh of the story.

In 2012, while Roberts-Smith was part of a raid searching for Afghan National Army sergeant Hekmatullah, who had killed three unarmed Australian soldiers at their base in August, he kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff.

He then ordered two other soldiers to drag the man under a tree, where he was shot dead.

Loading

When the soldiers had flown away, the villagers recognised the dead man as Jan, a shepherd from a nearby village. They dispatched a young boy to run to a village three hours away with the news.

Expecting her husband to return home to the hills with flour and gossip from the village, Jan’s pregnant wife, Bibi, instead received word that he was dead.

Ali Jan’s brother, Abdul Ahmad, was with her. He recalls reeling in disbelief that “a person who went to get flour” could somehow end up dead. When the news sank in, it brought utter despair.

“Then the screams started,” Ahmad says.

“Ali Jan’s mother was crying day and night for a week. His two elder daughters were screaming and running after their grandmother” in a state of bewilderment, pleading to be told their father was alive.

Ahmad said Ali Jan’s death had left his wife struggling to put food on the table. They can no longer afford meat or to send the children to school.

But the family, he said, had also been blessed. Three months after Ali Jan was allegedly kicked off a cliff by an Australian soldier, Bibi gave birth to a baby girl.

Read the entire story here.

Read Justice Anthony Besanko’s summary

Federal Court Justice Anthony Besanko has released a summary of his decision in this groundbreaking defamation case. You can read it here.

Advertisement

Seven confirms Ben Roberts-Smith remains employed with the network

By Nick Bonyhady

Seven, which employs Ben Roberts-Smith, has confirmed that he remains an employee of the network but is on leave.

“Ben remains on leave and will review the judgment with us and make a decision on his future in the near future,” a spokesman said.

“We will make no further comment at this time.”

Ben Roberts-Smith : How did we get here?

The decorated soldier has been found to have murdered unarmed prisoners while deployed in Afghanistan, in a historic win for three media outlets.

In the video below, investigative reporter Nick McKenzie explains how we got to this point.

‘The toughest fight of our journalistic careers,’ McKenzie says

By Georgina Mitchell

As noted earlier today, investigative journalist Nick McKenzie spoke outside court a short time ago, flanked by his co-writer and investigative journalist Chris Masters, Nine publishing executives James Chessell and Tory Maguire, and his legal team.

“Today is a day of justice; it’s a day of justice for those brave men of the SAS who stood up and told the truth about who Ben Roberts-Smith is – a war criminal, a bully and a liar,” McKenzie said.

Nick McKenzie outside court on Thursday.

Nick McKenzie outside court on Thursday.Credit: James Brickwood

“Australia should be proud of those men in the SAS. They are the majority in the SAS and they stood up for what was right, and they have been vindicated.

“Today is a day of some small justice for the Afghan victims of Ben Roberts-Smith. Ali Jan was the man kicked off the cliff [in Darwan on September 11, 2012]. Ali Jan was a father; Ali Jan was a husband.

“He was kicked off a cliff by Ben Roberts-Smith and he was murdered with Ben Roberts-Smith’s participation. There’s some small justice for him. There’s justice for the Afghan villagers who stood up in court.”

McKenzie said he did not want to go to court, nor did the SAS witnesses who testified.

“Ben Roberts-Smith brought this case. He came most every day, but he did not come to the day of judgment; he’s in Bali doing whatever he’s doing,” McKenzie said.

“What is clear is Ben Roberts-Smith is a liar. Someone described Ben Roberts-Smith to me as the Lance Armstrong of the Australian military [in a reference to the disgraced former cycling champion], and I think we must now take that as truth.”

McKenzie thanked Masters for believing in investigative journalism and for “standing beside me in the toughest fight of our journalistic careers”.

Advertisement

What happens next?

Award-winning investigative journalists Nick McKenzie and Chris Masters wrote the articles at the centre of the Roberts-Smith lawsuit. Their reporting of war crimes allegations against Roberts-Smith were vindicated today.

In the video below, McKenzie explains what happens next.

SAS veterans’ organisation responds to landmark decision

By Matthew Knott

The organisation representing Special Air Service (SAS) veterans has responded to the Ben Roberts-Smith judgment summary by saying soldiers from the elite regiment were victims of poor decisions made by political and military leaders in Canberra.

Loading

“This case has no bearing on whether anyone is guilty or not guilty of a war crime; it has been about whether or not Ben Roberts-Smith was defamed,” Martin Hamilton-Smith, the national chairman of the Australian Special Air Service Association, said.

“Any soldier charged deserves the presumption of innocence.”

Roberts-Smith has not been charged with any crime and the defamation case was a civil proceeding with a lower standard of proof, namely the balance of probabilities rather than beyond reasonable doubt.

James Chessell, Nine’s managing director of publishing, said today’s decision was a vindication of the brave soldiers of the SAS “who served their country with distinction and then had the courage to speak the truth about what happened in Afghanistan”.

Roberts-Smith served as an SAS corporal in Afghanistan and was awarded a Victoria Cross, the nation’s highest military honour, in 2011. The association has strongly opposed efforts by Australian Defence Force Chief Angus Campbell to strip medals from SAS commanders who were allegedly involved in wrongdoing in Afghanistan.

Hamilton-Smith said the association “stands by all our veterans, those who have raised concerns about events on operations and who are subject to accusations of acting unlawfully”.

“All were victims of a mismanaged war and poor decisions made in Canberra during and after the fighting,” he said, adding he believed soldiers had been unfairly vilified before being tried in the criminal justice system.

Greens call for Roberts-Smith uniform to be removed from display

By Matthew Knott

The Greens have called for Ben Roberts-Smith’s military uniform to be immediately removed from public display from the Australian War Memorial after a Federal Court judge found The Sydney Morning Herald and The Age accurately accused him of being involved in the unlawful killing and assault of unarmed Afghan prisoners.

Greens defence spokesman David Shoebridge described the defamation judgment as “an important win for fearless journalism in the public interest”.

Greens senator David Shoebridge.

Greens senator David Shoebridge.Credit: Alex Ellinghausen

“It’s a tragic fact that private media companies, not any part of the federal government, have taken on the public task of telling the truth about Australia’s war record in Afghanistan,” Shoebridge said on Twitter.

“The official silence must now end.”

The Australian War Memorial has been approached for comment.

Shoebridge called on the Albanese government to urgently progress compensation for families of victims of alleged Afghanistan war crimes, a recommendation from the Brereton report that has not been enacted.

A spokeswoman for Defence Minister Richard Marles said the government was developing options for such a compensation scheme.

Advertisement

Award-winning journalists speak

By Michaela Whitbourn

James Chessell, Nine’s managing director of publishing, said the decision was also a vindication of the brave soldiers of the Special Air Service “who served their country with distinction and then had the courage to speak the truth about what happened in Afghanistan”.

The award-winning investigative journalists who wrote the articles, Nick McKenzie and Chris Masters, also spoke outside court.

Chris Masters, left, and Nick McKenzie, right.

Chris Masters, left, and Nick McKenzie, right.Credit: James Brickwood

Chessell said the pair “painstakingly pieced together these investigations and today’s judgment exemplifies how the exhaustive public interest journalism of The Age and The Sydney Morning Herald serves our community and serves our country”.

The stories at the centre of the case would have a lasting impact on the Australian Defence Force, he said.

“While today is a pivotal moment in this story ... the story goes on. We will continue to hold people involved in war crimes to account.”

Masters said the newspapers made “a great call” in June 2018 to run the first of the stories in the series, and “I think it will go down in the history of the news business as one of the great calls”. He thanked Nine for its support, including the support of the in-house and external lawyers.

McKenzie said “today is a day of justice” including for the “brave men of the SAS who stood up and told the truth about who Ben Roberts-Smith is: a war criminal, a bully and a liar”.

Most Viewed in National

Loading