He remains Australia’s most decorated living soldier: once feted – almost revered – as the modern-day embodiment of this country’s Anzac legend.
The same man stands accused of murdering unarmed civilians in war, of a cowardly act of domestic violence, of bullying and violence and intimidation.
Ben Roberts-Smith, recipient of Australia’s highest military honour the Victoria Cross, will learn if he has won his defamation case against three Australian newspapers on Thursday.
The judgment, to be delivered by Justice Anthony Besanko in Sydney, will be the culmination of a near five-year legal process, and one of the most dramatic, consequential and expensive trials in Australian legal and military history.
Roberts-Smith, a former SAS corporal, has been accused by three Australian newspapers of war crimes: of murdering six civilians while on deployment in Afghanistan between 2009 and 2012, including, in one instance, kicking a handcuffed prisoner off a cliff, before ordering him shot dead.
He has also been accused of machine-gunning an unarmed disabled man to death, of ordering subordinates to execute prisoners, of repeatedly bullying and assaulting comrades, and of committing an act of domestic violence against a woman with whom he was having an affair.
Roberts-Smith denies the allegations, and all wrongdoing. He has sued the Age, the Sydney Morning Herald and the Canberra Times alleging their reporting defamed him, wrongly portraying him as a war criminal and murderer who who “broke the moral and legal rules of military engagement”. The newspapers are defending their reporting as true.
Roberts-Smith’s lawyers told court his accusers are fabulists and fantasists, failed soldiers embittered by their own “cowardice”, and a “corrosive jealousy” towards their comrade’s successes.
Giving evidence as the first witness before the federal court, Roberts-Smith said the Victoria Cross he won for spectacular bravery in 2010 was not an honour he sought, but, ultimately, a burden “thrust upon him”.
“It put a target on my back,” he told the court.
The decision in this case could cost whichever side loses up to AU$35m (£18.5m) in costs alone. If Roberts-Smith wins, he will likely be entitled to millions beyond in damages.
Roberts-Smith has taken out a loan from his employer, Australian media baron Kerry Stokes, to run this defamation action: if he loses, he has offered his Victoria Cross as collateral.
But the judgment might not be a straightforward decision one way or the other. The judge could find the newspapers were successful in proving some of the allegations true – to the civil standard of “balance of probabilities” – but not others. In that circumstance, the judgment is likely to be a balancing act of the damage to Roberts-Smith’s reputation of the unproven allegations, against those allegations that were proven.
The stakes are critical, on all sides.
Should the judge find the allegations against Roberts-Smith proven, his barrister Arthur Moses told the court, it “would paint Mr Roberts-Smith as a murderer … a violent person and a domestic violence abuser.
“It would indelibly and permanently tarnish his standing and good name.”
Should Roberts-Smith win, his vindication will, in many eyes, restore his former standing as a decorated veteran venerated for his gallantry in battle: bestowed, too, with civilian honours - Father of the Year, Australia Day Council chair, distinguished guest at the Queen’s funeral. It is a reputation which has suffered a vertiginous collapse since the publication of the allegations.
But the brutal, and at times bitter, defamation trial itself, has been damaging to his military and public standing.
The trial saw former comrades tell the court they saw him murder unarmed civilians in breach of the laws of war, and testify that Roberts-Smith was a bully and violent towards those he served with.
A former lover told the court he punched her, and then threatened her: “if you turn on me I will burn your house down,” she testified he said to her. “It might not be you that gets hurt, it might be people that you love and care about.” Roberts-Smith denies the allegation.
The court heard Roberts-Smith withheld potentially damaging evidence, including classified military files, by burying USB sticks in a child’s lunchbox in his backyard. The files were later handed to police investigators. Roberts-Smith denies ever burying them.
For the newspapers, beyond the calamitous financial impact, a loss could be expected to seriously dent their appetite – and the Australian media’s more generally – for critical, public interest investigations.
If the newspapers win, it will cement the reputations of the journalists who wrote the stories. The trial revealed painstaking work, over years, seeking to verify what were tightly held rumours within the arcane, closed world of Australia’s SAS regiment.
Over more than 100 days of evidence, the trial heard extraordinary testimony from dozens of former and serving SAS soldiers and officers, including several who continue to serve in the regiment, some at senior operational levels.
The court heard: of a quavering teenager shot in the head described as “the most beautiful thing I’ve ever seen”; of junior soldiers being ordered to execute unarmed prisoners in “blooding” rituals; of threatening anonymous letters being sent to soldiers; of a woman being surveilled and filmed as she attended an abortion clinic.
Dramatically, three SAS soldiers – each accused of murder on separate missions – refused in court to answer questions about what they did in Afghanistan, objecting on the grounds that any truthful answer they gave would be self-incriminatory. Each was permitted by Justice Besanko not to answer.
Regardless of the result of this monumental defamation trial, sources close to the trial say an appeal is likely.
But the trial has had broader impact still: military details of Australia’s unsuccessful 20-year campaign in Afghanistan have been laid bare in open court; ministers of the crown have been subpoenaed to give evidence; media empires have been pitched in scarcely concealed conflict; and institutions like the Australian War Memorial, which still hosts a display dedicated to Roberts-Smith, have been drawn in.
Within Australia’s military hierarchy, questions have been raised about the command responsibility of senior officers, and of the more-distant decision makers who repeatedly sent the same small cohort of soldiers to the ill-defined front lines of a dangerous, damaging war, fighting an elusive, indistinct enemy.
The trial, too, has exposed a spiteful factionalism within Australia’s usually secretive SAS regiment. It has pitted comrades against each other: including some former best friends who have given irreconcilable evidence over allegations of murder.
And there remains a broader, criminal context.
Already, one member of the Australian SAS has been charged with the war crime of murder arising from his alleged conduct in Afghanistan. Former trooper Oliver Schulz’s case is before the courts in New South Wales. He potentially faces life imprisonment if convicted.
The Australian government’s Office of the Special Investigator is still examining “between 40 and 50” allegations of war crimes committed by Australian special forces troops in Afghanistan.
The criminal investigations follow a four-year inquiry by Maj Gen Paul Brereton, a judge of the New South Wales court of appeal, on behalf of the Inspector General of the Australian Defence Force.
Released in 2020, Brereton’s report found “credible information” 25 Australian soldiers murdered 39 Afghan civilians, in some cases executing detained non-combatants to “blood” junior soldiers before inventing cover stories and planting weapons on corpses.
None of the killings could be attributed to the “fog of war”, Brereton said, describing the actions as “disgraceful and a profound betrayal” of the Australian military.
Separately, Roberts-Smith has been told by the Australian Federal Police he is a suspect in their investigations into alleged war crimes committed in Afghanistan, according to a recent court judgment in other proceedings, which also noted no charges have been brought against Roberts-Smith.
Regardless of the result in the defamation action, there remains the possibility that Roberts-Smith is ultimately criminally charged – and forced to defend at trial – allegations of war crimes.
