The 1,800 words of Justice Anthony Besanko’s summary judgment were quietly devastating.
Delivered in less than 20 minutes, the judge’s decision would see Ben Roberts-Smith VC lose what remained of his reputation, his job, and possibly his willingness to live in a country where he was once revered.
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” .
In a summary judgment released Thursday, Besanko found Roberts-Smith is a murderer and war criminal who killed unarmed civilians while serving with the Australian SAS in Afghanistan.
Besanko found that the major allegations made by the newspaper – that Roberts-Smith was a murderer, a criminal and a bully – were proven to the civil standard of the balance of probabilities.
Roberts-Smith has not spoken publicly since the judge’s decision was handed down, and has not responded to the Guardian’s requests for comment.
Having attended every day of the trial, Roberts-Smith was notably absent from court to hear the judgment against him. He was, instead, on the Indonesian holiday island of Bali, pictured sunbaking the day before the decision was handed down.
But while Roberts-Smith has been silent, Thursday’s decision has sparked a flurry of questions over the implications for Australia’s most decorated living soldier.
There is significant speculation from sources – inside and out of his military circles – that the former SAS corporal may seek to work and live overseas in the wake of the court’s finding, given the damning judgment against him and its catastrophic impact on a reputation once unimpeachable in Australia.
Roberts-Smith has resigned from his role at Seven West Media, where he was employed by media mogul Kerry Stokes who bankrolled his failed defamation bid. At the same time, his legal team is contemplating an appeal against the devastating judgment.
The outright dismissal of his claims against the newspapers has left Roberts-Smith with a legal bill expected to run into the tens of millions of dollars, an obligation likely to be borne by Stokes.
An appeal against Besanko’s judgment would cost a fraction of the expense of the year-long trial, but Roberts-Smith would likely need the backing of a benefactor, like Stokes, to mount a challenge.
Stokes has said the judgment against Roberts-Smith “does not accord with the man I know”, but it’s unclear whether he would back a further challenge.
“I haven’t had a chance to have a discussion with Ben as yet, but I will when he has had a chance to fully absorb the judgment,” Stokes said in a statement after Besanko’s decision.
The full judgment in Roberts-Smith’s case is set to be published Monday.
Sources familiar with the case believe Roberts-Smith is likely to appeal. His lawyer, Arthur Moses SC, said his legal team would “consider the lengthy judgment … and look at issues relating to an appeal”.
There are also significant questions about the formal recognition to be afforded to Roberts-Smith’s military service in the wake of the federal court judgment.
The display dedicated to Roberts-Smith at the Australian War Memorial is being reconsidered in light of the judge’s finding against him.
War Memorial chair, Kim Beazley, said the memorial “acknowledges the gravity of the decision” against Roberts-Smith.
“Collection items relating to Ben Roberts-Smith VC MG, including his uniform, equipment, medals and associated art works, are on display in the Memorial’s galleries. We are considering carefully the additional content and context to be included in these displays.”
Roberts-Smith won his Victoria Cross, Australia’s highest military honour, for “most conspicuous gallantry” in the famed battle of Tizak in 2010. That action was not part of this defamation trial or the accusations against him. He remains a recipient of the Victoria Cross.
There are, however, calls from media commentators and legal experts for him to be stripped of the decoration given the judgment against him.
Government regulations state the governor general – currently former chief of the defence force David Hurley – has the power to unilaterally cancel a Victoria Cross decoration. In practice, however, that power is exercised only on the advice of the defence minister. Richard Marles said on Thursday it would be inappropriate to comment.
Beyond the failed defamation action, any possible appeal, and legal costs arising from those, there remains the possibility Roberts-Smith could face criminal charges over allegations he committed war crimes. Any criminal prosecution would be entirely separate from the civil defamation trial.
The Australian federal police has told Roberts-Smith he is a suspect in their investigations into alleged war crimes committed in Afghanistan.
The 2020 Brereton report found “credible information” to support allegations that 25 Australian soldiers murdered 39 Afghan civilians during that conflict, 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.
The report’s author Paul Brereton, a major general and judge of the NSW court of appeals, dedicated a whole chapter in the document to “war crimes in Australia’s history”, arguing that “while Australia has traditionally been firm, but fair, in investigating and prosecuting the war crimes of our adversaries, we have generally been less proactive in dealing with reports or allegations of war crimes by Australian personnel”.
Brereton argued that the investigation and prosecution of war crimes was vital for the preservation of Australia’s “moral authority”.
“The failure to comprehensively deal with allegations and indicators of breaches of law of armed conflict as they begin to emerge and circulate is corrosive – it gives spurious allegations life, and serious allegations a degree of impunity.”
Prime minister, Anthony Albanese, asked in Singapore about the findings against Roberts-Smith, declined to comment on his case specifically.
But he said the government was “committed” to implementing the recommendations of the Brereton inquiry and report “to the extent possible”.
“That is an area in which we have a responsibility and we have indicated very clearly that we would take up that responsibility.”
