“The applicant [Ben Roberts-Smith] has no reputation capable of being further harmed.”
Tucked away at the bottom of more than 700 pages of judgment, Justice Anthony Besanko makes the unadorned point.
Besanko’s verdict is a withering condemnation, which follows a year-long defamation trial brought by Roberts-Smith against three Australian newspapers in an effort to restore his once-unimpeachable public reputation.
From the exalted pedestal he once occupied, few have ever had so far to fall.
Fewer still have fallen – entirely through their own hand – to such depths.
Roberts-Smith, a recipient of the Victoria Cross and Australia’s most decorated living soldier, lied about murdering civilians in Afghanistan, deliberately hid potentially damaging evidence from a court, colluded with witnesses who supported him and threatened those who might give evidence against him, according to the damning verdict.
In an act of extraordinary hubris, he brought his case to court. And then he lied, the judge found.
“I have difficulty accepting the applicant’s [Roberts-Smith’s] evidence on any disputed issue,” Besanko said.
“[He] has motives to lie, being a financial motive to support his claim for damages in these proceedings, a motive to restore his reputation … and significantly, a motive to resist findings against him which may affect whether further action is taken against him.”
The allusion to “further action” is an apparent reference to the fact that Roberts-Smith is currently the subject of an Australian federal police inquiry into alleged war crimes committed in Afghanistan. He may yet face criminal charges over his actions in Afghanistan.
Roberts-Smith, on the balance of probabilities, was found to have committed, or been complicit in, four murders in Afghanistan, including kicking an unarmed, handcuffed villager off a cliff and ordering him shot dead.
He “blooded” a junior soldier, forcing him to execute an elderly civilian who posed no threat, and he ordered Afghan soldiers serving alongside him to murder a prisoner.
In the witness box, Roberts-Smith denied all wrongdoing. He said he had never acted outside the laws of war, or harmed civilians. Those who accused him, he said, were motivated by jealousy of his decorations and fame.
The judge did not agree. Roberts-Smith murdered civilians while wearing an Australian uniform, Besanko found, and disgraced his country and its military.
In the lead-up to the trial, Roberts-Smith sought to intimidate those soldiers he thought might give evidence against him – he sent anonymous letters to one soldier at the SAS barracks threatening to accuse him of murder – and he colluded with those on whom he believed he could rely to honour a misguided “code of silence”.
“[Roberts-Smith] was speaking to his friends … using encrypted apps on burner phones. He was speaking to them about articles in the media and … I find that he was also speaking to them about the allegations of war crimes,” the judge found.
Roberts-Smith lied to the court about being separated from his wife, and he lied when he gave evidence that he had never threatened the woman with whom he was having an affair.
The judge found the newspapers’ allegation Roberts-Smith punched the woman – known as Person 17 – in a Canberra hotel room in 2018 was not proven, saying while he “preferred” Person 17’s evidence to Roberts-Smith’s, her evidence was not “sufficiently reliable to form the basis of a finding that the assault occurred”.
But the judge found that Roberts-Smith’s behaviour towards her was “intimidatory, threatening and controlling”. Roberts-Smith had the woman followed and surveilled on film by a private investigator; he took photographs of her naked while she slept, threatening her with them when she woke up.
“He said to her that if she did anything stupid or turned on the applicant, he would burn her house down and ‘it might not be you that gets hurt, but people you love and care about’.”
Roberts-Smith told the court Person 17 was a “fantasist” and those things never happened.
The judge, again, said he was lying.
Over 700 pages, the judgment repeatedly finds that Roberts-Smith’s evidence was false, distorted, or the product of collusion. Even the newspapers’ allegations, such as that of domestic violence, which were not proved substantially true, do not harm his reputation, the judge said, because the allegations that were proven are “so serious that the the applicant has no reputation capable of being further harmed”.
In some ways, Roberts-Smith was hiding in plain sight, displaying a callousness that cruelly undermined the thousands of Australians who fought in Afghanistan with honour, who served a righteous cause with honour.
Roberts-Smith, Besanko found, made no secret of killing outside the laws of war.
An SAS soldier anonymised before the court as Person 2 gave evidence that Roberts-Smith, on his first deployment to Afghanistan in 2006, told him: “I just want to kill cunts. I don’t give a fuck. I just want to kill cunts.”
The judge accepted Person 2’s evidence as true.
On a subsequent deployment, in 2012, Roberts-Smith told a comrade, Person 7: “Before this trip is over, I’m going to choke a man to death with my bare hands. I’m going to look him in the eye, and I’m going to watch the life drain out of his eyes.”
Again, the judge accepted Roberts-Smith said these words: “I accept [Person 7] as an honest and reliable witness.”
An alleged murder of a teenager in Fasil in 2012 was ultimately found not proven by the judge, because he could not be satisfied the alleged victim was identified with sufficient certainty from photographs. But he did find that Roberts-Smith gave an “extraordinary” answer when he was asked by an army medic, in the days following the mission, what had happened to one of the detained prisoners – “the young bloke who was shaking like a leaf?”.
Roberts-Smith replied: “I shot that cunt in the head … I pulled out my 9mm and shot him in the head. It was the most beautiful thing I’ve ever seen.”
