Ben Roberts-Smith, Australia’s most decorated living soldier, will learn next Thursday if he has won his defamation case against three Australian newspapers over allegations he committed war crimes in Afghanistan.
The judgment, to be delivered by Justice Anthony Besanko in Sydney on 1 June, will be the culmination of a near five-year legal process, after one of the most dramatic and consequential trials in Australian legal and military history.
Roberts-Smith, a former SAS corporal and holder of the Victoria Cross, has been accused by three newspapers of murdering six civilians while on deployment in Afghanistan between 2009 and 2012, including kicking a handcuffed prisoner off a cliff before ordering him shot dead.
He has also been accused of machine-gunning an unarmed disabled man to death, of ordering subordinates to execute prisoners, of repeatedly bullying and assaulting comrades, and of committing an act of domestic violence against a woman with whom he was having an affair.
Roberts-Smith denies the allegations, and all wrongdoing. He has sued the Age, the Sydney Morning Herald and the Canberra Times alleging their reporting defamed him, wrongly portraying him as a war criminal and murderer who who “broke the moral and legal rules of military engagement”.
Roberts-Smith’s lawyers told court his accusers were fabulists and fantasists, failed soldiers embittered by their own “cowardice”, and a “corrosive jealousy” towards their comrade’s successes.
Giving evidence as the first witness before the federal court, Roberts-Smith said the Victoria Cross he won for spectacular bravery in 2010 was not an honour he sought, but, ultimately, a burden “thrust upon him”.
“It put a target on my back,” he told the court.
Whichever side loses the case may face up to $25m in costs. If Roberts-Smith wins, he is likely to be awarded many millions more in damages.
Roberts-Smith took out a loan from his employer, the media baron Kerry Stokes, to run the defamation action: if he loses, he has offered his Victoria Cross as collateral.
But the judgment may not be a straightforward decision one way or the other. The judge could find the newspapers were successful in proving some of the allegations on the balance of probabilities – the civil standard – but not others. If so, the judgment is likely to be a balancing act weighing up the damage to Roberts-Smith’s reputation of the unproven allegations against those that were proven.
Should the judge find the allegations against Roberts-Smith proven, his barrister Arthur Moses told the court, it “would paint Mr Roberts-Smith as a murderer … a violent person and a domestic violence abuser.
“It would indelibly and permanently tarnish his standing and good name.”
For the newspapers, beyond the calamitous financial impact, a loss could be expected to seriously dent their appetite – and that of the Australian media more generally – for public interest investigations.
The outcome will be felt more broadly still. Details of Australia’s unsuccessful 20-year campaign in Afghanistan have been laid bare in open court; ministers of the crown have been subpoenaed to give evidence; media empires have been pitched in scarcely concealed conflict; and institutions such as the Australian War Memorial, which still hosts a display dedicated to Roberts-Smith, have been drawn in.
Within Australia’s military hierarchy, questions have been raised of the command responsibility of senior officers, and of the more-distant decision makers who repeatedly sent the same small cohort of soldiers to the ill-defined front lines of a distant war to fight an elusive, indistinct enemy.
The trial also exposed a spiteful factionalism within Australia’s usually secretive SAS regiment. It pitted comrades against each other: in some cases, former best friends gave irreconcilable evidence.
And there remains a broader criminal context.
Already, one member of the Australian SAS has been charged with the war crime of murder arising from his conduct in Afghanistan. Former trooper Oliver Schulz’s case is before the courts in NSW. He potentially faces life imprisonment if found guilty.
The Australian government’s Office of the Special Investigator is examining “between 40 and 50” further allegations of war crimes committed by special forces troops in Afghanistan.
The criminal investigations follow a four-year inquiry by Maj Gen Paul Brereton, a judge of the New South Wales court of appeal, for the Inspector General of the Australian Defence Force.
Released in 2020, the Brereton report found “credible” evidence of allegations 25 Australian soldiers murdered 39 Afghan civilians, 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 a “disgraceful and a profound betrayal” of the Australian military.
