Days after Ben Roberts-Smith’s landmark defamation case was dismissed, the full details of the judgment have been released, including a conclusion that Australia’s most decorated soldier lied to court and that key witnesses he called were not honest or reliable.
Roberts-Smith had sued three newspapers – the Sydney Morning Herald, the Age and the Canberra Times – and the result of the case made headlines when it was released last Thursday.
Justice Anthony Besanko initially only gave a summary of his findings, because of a commonwealth request to inspect the full decision for national security concerns. But on Monday the complete judgment – 736 pages long – was published, revealing how Besanko evaluated the evidence heard at trial.
Here are the key things the judge had to say about Roberts-Smith:
Death at Darwan: ‘He has lied’
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 federal court heard Roberts-Smith then “walked forward and kicked the individual in the chest” and that 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, Besanko said “the applicant’s evidence as to the path he took from the compound to the creek bed was unsatisfactory”.
Besanko added: “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.”
Roberts-Smith had claimed the man was a legitimate target because he was a scout for enemy insurgents – known as a spotter. But Besanko found Roberts-Smith knew he was falsely alleging this, and that Roberts-Smith “was conscious that the killing of Ali Jan was unlawful”.
Witnesses not honest and reliable
In 2009, at the village of Kakarak, Australian SAS forces raided a compound known as Whiskey 108 shortly after it had been bombed. Two men were found hiding in a secret tunnel inside the compound: one an elderly man, the other a younger man with a prosthetic leg. The men were brought out of the tunnel unarmed and they surrendered to the Australian troops who took them into custody.
The court found 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 machine-gunned him dead. The prosthetic leg was later souvenired by another soldier and used by Australian SAS troops as a drinking vessel.
Roberts-Smith gave evidence to the court about the mission, saying he shot the disabled man because he was running and carrying a weapon, and that another Australian soldier, unknown to him, had shot the disabled man, saving his life.
Roberts-Smith called four other soldier witnesses to support his evidence. The judge rejected them all as dishonest: “I do not accept the applicant [Roberts-Smith] and Persons 5, 29, 35 and 38 as honest and reliable witnesses.”
Burner phones and encrypted apps
Roberts-Smith used burner phones, encrypted apps and buried six USB sticks in a lunchbox in his ex-wife’s back yard, the judge found. His ex-wife, Emma Roberts, and a family friend dug up the USBs before handing the classified files to police.
Included on the USBs was classified information including operational reports from SAS missions in southern Afghanistan, drone footage of military operations and classified photographs.
The judge said Roberts-Smith 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 back yard 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.”
Threatening, anonymous letters
Roberts-Smith arranged for two anonymous, threatening letters to be sent to an SAS comrade, the court found. The letters warned the comrade, known as Person 18, to recant his evidence to the inspector general of the ADF’s inquiry into war crimes, or face being accused of murder himself.
One letter said: “You and others have worked together to spread lies and rumours to the media and the inspector general’s inquiry. You have one chance to save yourself. You must approach the inquiry and admit that you have colluded with others to spread lies.
“We are very aware of your many murderous actions over many tours in Afghanistan, including specific dates … just like when you took part in the execution of two persons-under-control at Tizak. You know what you have done and so do we.”
Despite his denials, the judge found Roberts-Smith wrote the letters and gave them to former policeman turned private eye John McLeod to post. Emma Roberts also gave evidence Roberts-Smith admitted to sending the letters.
“I am satisfied on the evidence that the applicant [Roberts-Smith], through Mr McLeod, arranged for two threatening letters to be sent to Person 18. I accept the evidence of Mr McLeod and Ms Roberts and I reject the evidence of the applicant [Roberts-Smith].”
