BRS war crimes ‘proven’, case dismissed

Decorated war veteran Ben Roberts-Smith has lost his defamation case against Nine newspapers.

The 44-year-old did not front the Federal Court on Thursday as Justice Anthony Besanko found imputations put forward across six articles by The Sydney Morning Herald, The Age and The Canberra Times were found to be substantially true.

The proceedings were officially dismissed, after Justice Besanko found the articles proved some, but not all, of the defamatory imputations, in a major win for the newspapers.

There was silence across the courtroom as Justice Besanko found the decorated veteran was a murderer and a war criminal in his conclusions.

WAR CRIME CLAIMS ‘PROVEN’

He said the most serious imputations alleged in the articles had been proven and the newspapers had upheld the defence of contextual truth for the remainder.

Justice Besanko found allegations of threats and domestic violence could not be proven, but was “satisfied” the defence made out the defence of contextual truth.

While not every murder allegation was established by the newspapers, the judge found the two key killings had taken place.

Justice Besanko found Mr Roberts-Smith’s actions on the mission to Whiskey 108 on Easter Sunday in 2009 were found to be substantially true, meaning he was found to have allegedly “frog marched” a man with a prosthetic leg out of a secret tunnel at the compound.

He has been found by the court to have shot the man with a machine gun in the back.

As well as being found by the judge to be a murderer, Mr Roberts-Smith was also found in the judgment to have “broken the moral and legal rules of military engagement and is therefore a criminal”.

The judge also found he disgraced his country and the Australian Army through his conduct.

Justice Besanko also found the murder of Ali Jan at Darwan in September 2012 to be substantially true, where Mr Roberts-Smith allegedly kicked the detained shepherd off a cliff while he was handcuffed.

It is alleged Mr Roberts-Smith marched the farmer to stand above the 10-metre-high cliff before kicking him onto a dry riverbed below.

The articles allege the farmer was then dragged to a cornfield and shot by either Mr Roberts-Smith or another soldier called Person 11. The killing was likened to the movie 300 in which a Spartan warrior kicks an enemy into an abyss.

FULL JUDGMENT YET TO COME

But the publication of the full reasons for the long-awaited outcome in the multimillion-dollar defamation trial between war veteran Ben Roberts-Smith and Nine newspapers will be delayed following an 11th-hour decision.

The commonwealth asked the judge to delay publishing the full written reasons in the case until Monday.

This is so they can be looked at for any disclosures of sensitive information.

Justice Besanko told the court that in addition to Thursday’s decision, a further 50 pages of “closed court” judgment was to be delivered to a select number of people.

“JUSTICE”

As the judgment was handed down, The Age journalist Nick McKenzie issued a one-word tweet, reading: “Justice.”

Speaking outside court, Mr McKenzie said the decision was a “day of justice” for SAS soldiers who spoke out during the hearing.

“These brave men of the SAS stood up and told the truth,” Mr McKenzie said.

“They told the truth that Ben Roberts-Smith was a war criminal, a bully, and a liar.

“Australia should be proud of those men.”

Mr McKenzie likened Mr Roberts-Smith to disgraced cyclist Lance Armstrong and urged the veteran to “reflect on the pain he brought”.

The investigative journalist said the decision would offer some relief to victims in Afghanistan who also gave evidence.

“Ali Jan was a father, a husband,” he said. “He was kicked off a cliff by Ben Roberts-Smith, and was murdered with his participation.

“There is some small justice for him (and) for all the Afghan villagers who stood up in court.”

Journalist Chris Masters said the decision came as a great relief for news media.

“It‘s a relief for the media, frankly, we know we’re so often on our knees,” he said.

“It often feels so hard to even do ordinary work, let alone work as difficult as this.”

Channel 9 director James Chessell said the result was a vindication of reporting on a “difficult story”.

“Today is a pivotal moment in this story, and we are very pleased with the result,” he said.

“The series of stories at the centre of this trial will have a lasting impact on the Australian Defence Force.

“We will continue to hold people involved in war crimes to account.

“The responsibility for these atrocities does not end with Ben Robert Smith.”

“DISAPPOINTED”

Chairman of Seven West Media, Kerry Stokes expressed his disappointment at the judgment.

“The judgment does not accord with the man I know. I know this will be particularly hard for Ben, who has always maintained his innocence. That his fellow soldiers have disagreed with each other, this outcome will be the source of additional grief,” he said in a statement.

“I haven’t had a chance to have a discussion with Ben as yet, but I will when he has had a chance to fully absorb the judgment.”

IN BALI ON JUDGMENT DAY

On the eve of the monumental decision, Mr Roberts-Smith, 44, was pictured laying poolside in Bali at a $500-a-night resort.

According to 9 News, the Victoria Cross recipient checked into the hotel on Tuesday.

Many expected Mr Roberts-Smith to attend court today, as he did every single day during the 110-day long trial, even when former comrades and his ex-wife gave evidence against him.

He is not legally required to be in court for the decision.

A $25 MILLION TRIAL

Since the Federal Court trial ended on July 27 last year, Justice Besanko has been scrutinising more than 100 days of evidence to decide whether Australia’s most decorated living soldier committed “the most heinous acts of criminality” while serving with the SAS.

The decision comes after 309 days of waiting for the elite veteran, and his journalist accusers, after 41 witnesses and more than $25 million in legal fees.

The marathon trial redefined Australia’s war in Afghanistan, but also exposed alleged war-crimes by the former soldier and revealed his extramarital affair.

The Victoria Cross recipient launched a defamation lawsuit shortly after Nine accused him of war crime murders in six mid-2018 articles published in The Sydney Morning Herald, The Age and The Canberra Times.

He alleged the newspapers wrongly accused him of war crimes, bullying a fellow soldier and an act of domestic violence against a former lover.

But Nine dug in, defending the articles in the Federal Court by saying they are true.

In their defence, Nine sought to prove on the balance of probabilities Mr Roberts-Smith was involved in the murder of five unarmed prisoners while in Afghanistan between 2009 and 2023.

During closing arguments, Mr Roberts-Smith’s barrister, Arthur Moses SC, reminded the judge that Nine bore the heavy burden of proving his client was a murderer.

The entirety of the evidence, Mr Moses told the court, shows Nine had no basis and no proof to publish grave claims Mr Roberts-Smith killed six unarmed Afghans.

“(Nine) published allegations and stories as fact that condemned Mr Roberts-Smith as being guilty of the most heinous acts of criminality that could be made against a member of the Australian Defence Force, and indeed any citizen,” he said.

He called on the judge to reject Nine’s case “in all forms”.

One question Nine has never answered, according to Mr Roberts-Smith, is what motive did he have to kill five detained Afghans when he had transported hundreds more safely back to Australian bases.

But Nine’s barrister, Nicholas Owens SC, told the judge even “the most brutal, vile member of the Taliban imaginable” cannot be killed and detained.

“To do so is murder,” he said.

He said Mr Roberts-Smith killed detainees simply because they were “enemy combatants”.

“We say that was a powerful motive that operated in relation to all of these incidents … it was a motive to kill Taliban insurgents regardless of the lawfulness of doing so,” Mr Owens told the court.

SAS CONFLICT

The trial is the culmination of years of conflict within the SAS and it has a significant overlap with top-secret war crime investigations.

Lawyers representing the Commonwealth government were also present during the trial every day to keep highly classified military information out of the public sphere.

Mr Roberts-Smith was awarded the Victoria Cross, the highest military honour, when he stormed machine guns that had pinned down his men in the battle of Tizak in late 2010.

Over the following years the VC, and Mr Roberts-Smith’s meteoric rise to national hero, divided the SAS into two camps, the court heard.

Multiple soldiers testified that many in the SAS backed Mr Roberts-Smith as among the best in the brotherhood, while others believed the famed Corporal was a thug to his own men, and maybe even something more sinister.

It was 2016, two years before Nine’s articles emerged, that the Inspector General of the Australian Defence Force began probing rumours of war crimes within the SAS.

No one has been charged with war crimes by the OSI but it was clear they, too, were closely watching the defamation trial that traversed the dustiest corners of Afghanistan to the inner fractures of Australia’s most secretive military brotherhood.