Journalists Nick McKenzie and Chris Masters, who reported on the soldier’s alleged war crimes, give a statement outside the Federal Court, in Sydney.
Thu 01 June 2023:
An Australian court has found that Ben Roberts-Smith, who was awarded the Victoria Cross for his bravery, probably killed unarmed civilians in Afghanistan as three newspapers reported in 2018.
Roberts-Smith, a former soldier with the elite Special Air Services Regiment (SASR), sued the Sydney Morning Herald, The Age and Canberra Times for defamation after they reported he had murdered Afghans during multiple deployments to the country.
He claimed the publications had undermined his reputation and made him out to be a man who “broke the moral and legal rules of military engagement” and “disgraced his country and the Australian army”.
In a summary judgement read out in Sydney on Thursday, Judge Anthony Besanko said that on the balance of probabilities – the evidential standard for a civil trial – “the respondents had established the substantial truth” of several of the allegations, including that in 2012 Roberts-Smith kicked an unarmed and handcuffed Afghan man off a cliff and then ordered two soldiers in his unit to kill the badly injured man.
“Murderer, war criminal, bully” reads @smh headline re Ben Roberts-Smith, a Victoria Cross winner. Can’t help but wondering whether his stunning fall from grace will culminate in criminal charges down the track.
— Kate McClymont (@Kate_McClymont) June 1, 2023
Justice.
— Nick McKenzie (@Ageinvestigates) June 1, 2023
Besanko found the journalists also established the substantial truth of reports that in 2009 he had murdered a disabled Afghan man, and also ordered the execution of a man who had hidden himself in a tunnel in a bombed-out facility known as Whiskey 108.
The publications opted for the “truth” defence, and the case transfixed Australia through 110 days of hearings that were delayed by the COVID-19 pandemic and ended with closing arguments in July 2022.
Some 40 witnesses gave evidence, including serving and former soldiers, some of whom Roberts-Smith accused of jealousy and lying.
Andrew Kenyon, a professor at the Melbourne Law School and expert on media law, freedom of expression and defamation, said the outcome was damning for the veteran.
“His name will be very much linked in the public mind with the murders that the judge said he committed directly or ordered through other actions,” Kenyon told Al Jazeera. “In that way, it’s a classic defamation case where the strongest result is in fact to change the reputation of the person who brought the case.”
The judge found that Roberts-Smith, who was not in court for the judgement, had also bullied fellow soldiers, but said other allegations of wrongdoing were not proven, including that he was complicit in two other murders in Afghanistan in 2012 and that he attacked his lover.
The full public judgement will not be available until Monday after the government asked for its release to be delayed on national security grounds.
Roberts-Smith was awarded the Victoria Cross, Australia’s highest military honour, for his gallantry under fire during operations in Afghanistan [File: Cpl Chris Moore/Pool via Getty Images]
Thursday’s judgement comes amid a growing focus on the conduct of Australia’s military.
The landmark Brereton Report, which was released in much-redacted form in 2020, found there was “credible evidence” members of the special forces had unlawfully killed 39 people while deployed in Afghanistan.
An Office of the Special Investigator (OSI) was established and in March, it charged a 41-year-old former soldier with murder over the death of an Afghan man.
He is the first serving or former member of the Australian military to be charged with war crimes and faces a life sentence if found guilty.
Smith-Roberts’ legal team has said they might consider an appeal and have 42 days to notify the court if they plan to do so.
A hearing will be held on costs in four weeks.
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