Ben Roberts-Smith and four key witnesses he called were not honest or reliable when it came to their evidence, a federal court justice has found in the full judgment of the war veteran’s defamation case.
Justice Anthony Besanko’s complete judgment – 736 pages long – was published on Monday afternoon after he delivered an initial summary decision in court on Thursday.
Only a summary judgment was released last week because of a last-minute request from the commonwealth to inspect the full judgment for national security concerns.
In Monday’s full judgment, Besanko said Roberts-Smith, and the four witnesses he called were dishonest in their evidence about two alleged murders at a compound called Whiskey 108 in the village of Kakarak in 2009.
The mission to Whiskey 108 was a critical allegation published by the newspapers against Roberts-Smith.
Two men were found hiding in a secret tunnel inside the bombed-out Whiskey 108 compound: one an elderly man, the other a younger man with a prosthetic leg. The men allegedly came out of the tunnel unarmed and surrendered.
Roberts-Smith ordered a junior soldier on his patrol to execute the old man, before manhandling the man with the prosthetic leg outside the compound, where he threw him to the ground and fired his para minimi machine gun into his prone body, the judge found.
The man’s leg was later souvenired by another soldier and used by Australian SAS troops as a macabre celebratory drinking vessel at their on-base bar the Fat Ladies’ Arms.
Roberts-Smith gave evidence to the court about the mission and called four other soldier witnesses to support his evidence. The judge rejected them all as dishonest.
“I do not accept the applicant and Persons 5, 29, 35 and 38 as honest and reliable witnesses,” Besanko’s judgment states.
Robert-Smith’s witnesses said no men were found in the tunnel at Whiskey 108. Besanko found they were lying.
“There were two insurgents in the tunnel and when they came out they were obviously very frightened,” he found.
One of the insurgents had a distinctive limp and that was the insurgent with the prosthetic leg. As he was coming out of the tunnel, he was lifting his trouser leg and pointing to the prosthetic leg “expecting some sort of sympathy’.”
Roberts-Smith sued three Australian newspapers claiming they defamed him by falsely portraying him as a “criminal” who “broke the moral and legal rules of military engagement”.
But the judge was scathing of Roberts-Smith’s evidence overall: “I have difficulty accepting the applicant’s evidence on any disputed issue.”
The judge found Roberts-Smith had motives to lie to the court.
“The applicant has motives to lie, being a financial motive to support his claim for damages in these proceedings, a motive to restore his reputation which he contends has been destroyed by the publication of the articles and significantly, a motive to resist findings against him which may affect whether further action is taken against him.”
Besanko found Roberts-Smith lied about burying USBs containing sensitive and classified Defence material in his backyard – and that he knew the documents were relevant to the case and kept them hidden.
“I do not accept the applicant’s case that the failure to discover the USBs was due to inadvertence. The applicant lied about not burying the USBs in the backyard of the matrimonial home. He must have known they were relevant. He had sworn three affidavits of discovery and each time has not discovered them. I find that he decided not to discover them.”
The defamation trial heard Roberts-Smith’s ex-wife and a family friend dug up six USB storage sticks, buried in a child’s lunchbox in the Roberts-Smith family backyard, before handing the classified files to police.
Besanko found the war veteran lied about details of a key incident to explain evidence from witnesses which might otherwise have seemed unfavourable to him.
At trial, the newspapers sought to prove it was “substantially true” that Roberts-Smith, on a mission to the southern Afghan village of Darwan in 2012, marched a handcuffed man named Ali Jan to stand above a 10-metre-high cliff that dropped to a dry riverbed below. The court heard Roberts-Smith then “walked forward and kicked the individual in the chest”.
The court heard the man survived the fall but was significantly injured. Roberts-Smith then allegedly ordered a subordinate soldier to shoot Ali Jan dead before the body was dragged into a cornfield.
In his full judgment released on Monday, Besanko said “the applicant’s evidence as to the path he took from the compound to the creek bed was unsatisfactory”.
Besanko said: “Further, I consider that he has lied about the height of any embankment on the side of the creek bed abutting the fields and he has lied about using his foot to move the insurgent near the Helmand River with a view to possibly explaining evidence from witnesses which might otherwise seem unfavourable to him.”
