Ben Roberts-Smith 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, a federal court judge has found in an excoriating judgment to conclude the ex-soldier’s failed defamation case against three newspapers.
Justice Anthony Besanko found Roberts-Smith, a recipient of the Victoria Cross and Australia’s most decorated living soldier, murdered civilians while on deployment with the SAS in Afghanistan and lied in his evidence, under oath, before court.
“I have difficulty accepting the applicant’s [Robert-Smith’s] evidence on any disputed issue,” the judge said.
Roberts-Smith had brought the defamation action against the Age, the Sydney Morning Herald, and the Canberra Times, claiming they had falsely portrayed him as a war criminal, a murderer and a bully.
The newspaper successfully defended their reporting as true, with the judge dismissing Roberts-Smith’s claims in their entirety. The case could cost Roberts-Smith and his benefactor and backer, Kerry Stokes, up to $35m.
An appeal by Roberts-Smith to the full bench of the federal court is expected. Despite attending every day of the court hearing, Roberts-Smith was not in Australia to hear the judgment delivered last Thursday.
Besanko said Roberts-Smith was motivated to – and did – lie to the court.
“The applicant has motives to lie, being a financial motive to support his claim for damages in these proceedings, a motive to restore his reputation which he contends has been destroyed by the publication of the articles 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 AFP inquiry into alleged war crimes committed in Afghanistan. He may face criminal charges over his actions in Afghanistan.
Two of the most high-profile allegations of murder against Roberts-Smith were both found proven by the judge in the defamation case to the civil standard of the “balance of probabilities”.
In 2009, Australian SAS troops found two men hiding in a secret tunnel in a bombed-out compound known as “Whiskey 108”, in a village called Kakarak. The men – one elderly, the other a younger man with a prosthetic leg – emerged from the tunnel unarmed and surrendered.
Roberts-Smith ordered a junior soldier on his patrol to execute the old man, before manhandling the man with the prosthetic leg outside the compound, throwing him to the ground and machine-gunning him dead.
The disabled man’s leg was later souvenired by another soldier and used by Australian SAS troops as a macabre celebratory drinking vessel at their on-base bar, the Fat Ladies’ Arms.
Roberts-Smith gave evidence to the court about the mission, saying he shot the disabled man because he was running and carrying a weapon and that another Australian soldier, unknown to him, had shot the disabled man, saving his life. Roberts-Smith called four other soldiers as witnesses to support his evidence. The judge rejected them all as dishonest.
“I do not accept the applicant [Roberts-Smith] and Persons 5, 29, 35 and 38 [Roberts-Smith’s soldier witnesses] as honest and reliable witnesses,” Besanko said.
The other major allegation against Roberts-Smith concerned a mission to the southern Afghan village of Darwan in 2012, where, the court found, he marched a handcuffed man named Ali Jan to stand above a 10-metre-high cliff that dropped down to a dry riverbed.
Ali Jan was held by the shoulder by another Australian soldier, known before the court as Person 11.
“[Roberts-Smith] kicked Ali Jan off the small cliff or steep slope into the dry creek bed below.”
Ali Jan was badly injured but alive at the bottom of the cliff. He was carried to a cornfield by Australian soldiers, where he was killed by a subordinate soldier at Roberts-Smith’s direction.
“Person 11 shot Ali Jan who at that point was standing and still handcuffed,” the judge found.
“Roberts-Smith was party to an agreement with Person 11 to murder Ali Jan.”
Roberts-Smith told court the man was a legitimate target because he was a scout for enemy insurgents, known as a “spotter”. However, Besanko found Roberts-Smith knew this was false and that he “was conscious that the killing of Ali Jan was unlawful”.
The judge also found Roberts-Smith lied about burying USBs containing sensitive, classified defence material in his backyard, the judge has found.
His defamation trial heard his ex-wife, Emma Roberts, and a family friend dug up six USB storage sticks buried in a child’s lunchbox in the family backyard, before handing the classified files to police.
Included on the USBs was classified information including operational reports from SAS missions in southern Afghanistan, drone footage of military operations and classified photographs.
The judge said Roberts-Smith knew the documents were relevant to the case and kept them hidden.
“I do not accept the applicant’s case that the failure to discover the USBs was due to inadvertence. The applicant lied about not burying the USBs in the backyard of the matrimonial home. He must have known they were relevant. He had sworn three affidavits of discovery and each time has not discovered them. I find that he decided not to discover them.”
Roberts-Smith also sent two anonymous threatening letters to an SAS comrade, known before the court as Person 18. The letters warned Person 18 to recant his evidence to the inspector general of the ADF’s inquiry into war crimes, or face being accused of murder himself.
Despite his denials, the judge found Roberts-Smith wrote the letters and gave them to former policeman-turned-private eye John McLeod to post.
Emma Roberts also gave evidence Roberts-Smith admitted to sending the letters and said she saw him at home with a grey shopping bag filled with a packet of Reflex paper, a packet of envelopes and a packet of gloves.
In court, Roberts-Smith denied sending the letters. But Besanko said he was “satisfied on the evidence that the applicant [Roberts-Smith], through Mr McLeod, arranged for two threatening letters to be sent to Person 18. I accept the evidence of Mr McLeod and Ms Roberts and I reject the evidence of the applicant [Roberts-Smith].”
Besanko also found Roberts-Smith colluded with a witness he called to provide “a false account”.
Significant parts of Roberts-Smith’s defamation trial concerned allegations he assaulted a woman with whom he was having an affair, known before court as Person 17.
The judge found the newspapers’ allegation Roberts-Smith punched her 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”.
The judge found that Roberts-Smith’s behaviour was “intimidatory, threatening and controlling”. Roberts-Smith had the woman followed and surveilled on film by McLeod, and took photographs of her naked while she was asleep.
“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’.”
