A defamation case by war veteran Ben Roberts-Smith against three newspapers has been dismissed, after a judge found defences of substantial or contextual truth had been established over alleged unlawful killings and bullying.
The Victoria Cross recipient sued The Sydney Morning Herald, The Age, The Canberra Times and three journalists in the Federal Court over a series of stories published in 2018.
Mr Roberts-Smith said they contained false allegations of war crimes in Afghanistan, bullying of his former Special Air Service Regiment (SAS) colleagues and domestic violence against a woman in a Canberra hotel room.
Publisher Nine Entertainment relied on a truth defence, and both sides called current and former SAS witnesses.
Justice Anthony Besanko on Thursday ruled the publisher had established the substantial truth of the imputations linked to allegations of unlawful killings in Afghanistan, and had established the contextual truth of imputations linked to allegations of bullying and domestic violence.
A second imputation of bullying was also found to be substantially true.
He ordered the proceedings be dismissed.
The most serious allegations contained in Nine's particulars of truth related to the deaths of six Afghan men who were under control or confinement.
Justice Besanko found Nine had established a substantial truth in relation to the most prominent alleged unlawful killings in its reporting.
However, the judge found they had not established this defence in relation to two alleged deaths, which took place on separate missions in 2012.
Outside court, Mr Roberts-Smith's barrister Arthur Moses SC said: "We will consider the lengthy judgement that his honour has delivered and look at issues relating to an appeal."
Journalist Chris Masters, who was named as a respondent in Mr Roberts-Smith's lawsuit, said the decision to publish the articles would go down as one of the "great calls" in the news industry.
"I'm not standing here as a loser but I don't think that anybody comes out of a matter like this feeling exultant and triumphant," he said outside court.
Investigative journalist Nick McKenzie, who was also a respondent in the case, said he never wanted to go to court, and pointed out Mr Roberts-Smith did not turn up to the judgement.
"He's in Bali doing whatever he's doing, but we're here ... to welcome justice and the truth," McKenzie said outside court.
Allegation of kicking man off cliff
The most dramatic allegation published by Nine involved a mission in the village of Darwan, in September 2012.
It was there Mr Roberts-Smith was accused of kicking an unarmed, handcuffed Afghan farmer named Ali Jan over a cliff.
The decorated veteran gave evidence that a suspected Taliban "spotter" was killed in a cornfield during the mission, and denied there was any cliff or kick.
But a former SAS soldier called by Nine and codenamed Person 4, claimed in court he was left shocked after seeing Mr Roberts-Smith "catapult" a man backwards over a slope, before a number of his teeth were knocked out when he hit a rock.
Person 4 further testified the injured man was then dragged towards a large tree, before Mr Roberts-Smith had a quick conversation with another soldier, Person 11.
The witness said he then heard shots ring out and saw Person 11 in a position to shoot.
In relation to the mission in Darwan, Justice Besanko found Mr Roberts-Smith's conduct and actions, as established in court, meant Nine had established the substantial truth of three imputations.
These included that Mr Roberts-Smith "murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him," and "broke the moral and legal rules of military engagement and is therefore a criminal".
Whiskey 108 mission
Another mission which dominated evidence took place in April 2009, when the SAS bombed and raided a Taliban compound known as Whiskey 108.
There were contradictions between accounts provided by Mr Roberts-Smith's SAS witnesses and those called by Nine, in relation to a secret tunnel discovered there — and whether or not any Afghan men surrendered from it.
Nine alleged one of the men, who had a prosthetic leg, was shot dead by Mr Roberts-Smith outside the compound, while a second was shot by a junior soldier.
A witness, codenamed Person 4, gave evidence it was Mr Roberts-Smith who ordered the man be shot.
Several of the ex-soldier's witnesses insisted, like him, there were no men in the tunnel, and during his own evidence the veteran told the judge a man he killed was a legitimately engaged, armed insurgent he encountered outside.
A soldier, codenamed Person 41, was among the witnesses who contradicted that evidence; he claimed to have seen Mr Roberts-Smith "frogmarch" an Afghan man outside and fire three to five rounds from a machine gun into his back.
In relation to the Whiskey 108 mission, Justice Besanko found Nine successfully established the substantial truth of six imputations, including that Mr Roberts-Smith "committed murder by machine gunning a man with a prosthetic leg" while a member of the SAS.
Domestic violence allegations
An allegation of domestic violence in a Canberra Hotel related to a woman Mr Roberts-Smith had an affair with from October 2017.
Known as Person 17, she recalled attending a function at Parliament House in March the following year, where she fell down stairs while trying to leave the event, having been drinking, and sustained an injury to the side of her forehead.
She told the court Mr Roberts-Smith later punched her to the side of the face, angry her behaviour that evening revealed their relationship.
Mr Roberts-Smith denied striking the woman — describing domestic violence as "a disgusting act of cowardice" — and told the court he left the passed-out woman on the bed with ice for her injury.
He said a newspaper report about the alleged assault "ruined his life".
Justice Besanko on Thursday said he was not satisfied the woman's evidence was "sufficiently reliable to form the basis of a finding that the assault occurred".
This meant that two imputations, including that Mr Roberts-Smith "committed an act of domestic violence" and was "a hypocrite" due to his public support for domestic violence campaigner Rosie Batty, had not been established as substantially true.
However, the judge found Nine successfully established a defence of contextual truth.
The publisher argued that because imputations linked to the more serious allegations were substantially true, Mr Roberts-Smith's reputation could not have been further harmed by these imputations related to the alleged assault.
