In an extraordinary judgment, the federal court has found that Australia’s most decorated war hero, Ben Roberts-Smith, murdered unarmed civilians while serving in Afghanistan, and that reporting painting him as a bully was substantially proven.
The decision was the result of a landmark defamation case that Roberts-Smith brought against reporting by three newspapers – the Sydney Morning Herald, the Age and the Canberra Times – from 2018 that he claimed falsely portrayed him as a criminal who broke the legal rules of military engagement.
The judgment on Thursday brought the lengthy trial to an end, after it heard more than 100 days of evidence over more than a year, including from fellow Special Air Service (SAS) members giving evidence in court.
Roberts-Smith consistently denied any wrongdoing in any of the allegations made by the newspapers, and claimed their reportage had conveyed 14 defamatory imputations.
These imputations related to several events that took place while he served in Afghanistan, as well as behaviour in Australia.
Here’s a breakdown of what Justice Anthony Besanko found:
Death at Darwan
One of the key allegations in the trial was 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 down to a dry riverbed below. The court heard that 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.
Robert-Smith argued the man was a scout for enemy insurgents and therefore a legitimate target.
Both parties agreed that reportage of this event conveyed imputations that Roberts-Smith “murdered an unarmed and defenceless Afghan civilian”, that he “broke the moral and legal rules of military engagement and is therefore a criminal”, and that he “disgraced his country Australia and the Australian army by his conduct as a member of the SASR [Special Air Service regiment] in Afghanistan”.
Judgment: Besanko found that, on the balance of probabilities, the newspapers established the substantial truth of these imputations.
Whiskey 108
Another prominent allegation concerned a 2009 raid on a bombed-out compound codenamed Whiskey 108, within which a secret tunnel was found.
The newspapers’ reporting alleged two men were found hiding in the tunnel: one an elderly man, the other a younger man with a prosthetic leg, and that they came out of the tunnel unarmed and surrendered. Roberts-Smith allegedly ordered a junior soldier on his patrol to execute the elderly man, before Roberts-Smith himself murdered the younger disabled man with his Para machine gun.
The former war hero gave evidence that two men were killed legitimately, in accordance with the Australian troops’ rules of engagement, as they were Taliban members trying to flee the compound.
In addition to these allegations, Roberts-Smith claimed this reporting conveyed imputations that “having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer-drinking vessel”.
Judgment: Besanko found that, on the balance of probabilities, the newspapers established the substantial truth of these imputations.
Domestic violence claims
Also part of the trial was an allegation that Roberts-Smith punched a woman with whom he was having an affair after an argument after a dinner at Parliament House in Canberra in 2018.
The woman told the court that after telling Roberts-Smith her head hurt after falling down stairs, he replied “it’s going to fucking hurt more” or “I’ll show you hurt” before punching her.
Roberts-Smith denied ever hitting her, and claimed the whole story was a fabrication.
In addition to conveying the imputation he committed domestic violence, Roberts-Smith claimed the articles imputed that he was “a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman”.
Judgment: Besanko said the newspapers had not proved these allegations. In his judgment, Besanko said he was not satisfied the evidence the court heard was “sufficiently reliable to form the basis of a finding that the assault occurred”. However, he found they could rely on the defence of contextual truth for these imputations. That is, the articles containing the allegations could not further harm Roberts-Smith’s reputation because other, more serious imputations contained in the article were found to be substantially true.
Murders at Fasil and Syahchow
The newspapers also reported allegations that Roberts-Smith was complicit in further murders of two Afghan men who were under control – during missions to Syahchow and Fasil in southern Afghanistan in 2012.
Judgment: Besanko found that the newspapers did not establish the particulars of truth related to these alleged murders.
Bullying and threatening fellow soldiers
Reporting alleged that Roberts-Smith “engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence”, the soldier claimed.
Judgment: Besanko found the newspapers were able to prove the truth of this allegation.
The newspapers also reported that Roberts-Smith allegedly threatened to report a soldier known as Trooper J to the international criminal court for firing at civilians, unless Trooper J provided an account of a friendly fire incident that was consistent with Roberts-Smith’s version of events.
Judgment: Besanko was not satisfied this was sufficiently proven. However, he found the newspapers could rely on the defence of contextual truth for this imputation.
Assaults
The newspapers’ reporting alleged multiple incidents of Roberts-Smith either assaulting or authorising the assault of unarmed Afghan civilians.
One incident was in 2010, with newspapers alleging he “bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off”.
In 2012, Roberts-Smtih, as a patrol commander, allegedly authorised the assault of an unarmed Afghan who was being held in custody and posed no threat. Also in 2012, Roberts-Smith was alleged to have assaulted an unarmed Afghan.
Judgment: Besanko found the newspapers established the substantial truth of these imputations.
Guardian Australia published a special episode of the podcast Ben Roberts-Smith v the media on Friday morning. Subscribe to Ben Roberts-Smith v the media to catch up on the court case and be notified of new episodes
