Ben Roberts-Smith loses appeal over war crimes judgment

After a seven-year defamation fight and tens of millions of dollars in legal costs, former soldier Ben Roberts-Smith has failed in his bid to overturn a landmark decision that found he committed war crimes in Afghanistan.

The former Special Air Service corporal launched a court challenge to his comprehensive loss against The Age and The Sydney Morning Herald after a marathon defamation trial that was billed as a test of public interest reporting and a quasi war crimes investigation.

Ben Roberts-Smith outside the Federal Court earlier this month.Credit: Sam Mooy

But the Full Court of the Federal Court – Justices Nye Perram, Anna Katzmann and Geoffrey Kennett – unanimously dismissed his appeal on Friday and ordered him to pay the newspapers’ costs. Roberts-Smith was not in court to hear the judgment being delivered.

The ruling was touted by Nine, the publisher of The Age and the Herald, as an “emphatic win” for investigative journalism.

In a 2023 decision, Federal Court Justice Anthony Besanko upheld the newspapers’ truth defence and found Roberts-Smith was complicit in the murder of four unarmed prisoners while deployed in Afghanistan between 2009 and 2012.

The appeal court said in a summary of its decision that “we are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that [Roberts-Smith] … murdered four Afghan men”.

Roberts-Smith outside the Federal Court earlier this month.Credit: Sam Mooy

Besanko’s decision was made to the civil standard, on the balance of probabilities, rather than the higher criminal standard of beyond reasonable doubt.

“I continue to maintain my innocence and deny these egregious spiteful allegations,” Roberts-Smith, a Victoria Cross recipient, said in a statement after the decision.

“We will immediately seek to challenge this judgment in the High Court of Australia.”

The appeal hearing ran for 10 days in February last year – following a 110-day trial in 2021-22 and a 726-page judgment – and the parties had been awaiting the decision for more than a year.

The appeal court noted Besanko was “satisfied, contrary to [Roberts-Smith’s] ... account, that the people whose deaths he caused, procured or agreed to were protected by the laws of armed conflict”.

‘We are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that [Roberts-Smith] … murdered four Afghan men.’

Federal Court Justices Nye Perram, Anna Katzmann and Geoffrey Kennett

“In the course of his reasons, his Honour made numerous adverse findings about the credibility of [Roberts-Smith’s] ... evidence and that of witnesses called on his behalf who had testified that the killings were legitimate.

“In this appeal none of the adverse credit findings are challenged.”

Some of the appeal court’s reasons for its decision will not be made public because they contain national security information, but a portion of the judgment known as the open court reasons will be released within days.

“In order to give the Commonwealth two working days to examine the open court reasons to ensure there has been no inadvertent disclosure of national security information, the open court reasons will be impounded until 5pm next Tuesday,” Perram said.

The court made a non-publication order over the open court reasons “until either the Commonwealth notifies the court and the parties that it has no objection to publication … or 4pm on 20 May, 2025, whichever is earlier”.

Top silk Bret Walker, SC, acting for Roberts-Smith, told the appeal court last year that “the heart of our case” was that “weight is to be given to the presumption of innocence”.

He said the evidence marshalled by The Age and the Herald in defence of the lawsuit fell short of the “exactness of proof” that was expected.

But Nicholas Owens, SC, who was acting for the newspapers and is now a Federal Court judge, told the appeal court that the case was “not like a detective novel” where there could be multiple explanations for the killings.

He said that, in general, “we know who killed” the four Afghan men in question and “we know how they were killed” – by gunshot.

“The only dispute is in effect the immediate circumstances,” Owens said.

In a surprise development in March this year, a “secret recording” emerged of The Age and the Herald’s investigative journalist Nick McKenzie speaking to a witness in the defamation case, dubbed Person 17, before she gave evidence in the trial in 2022. McKenzie was an author of the articles at the centre of the lawsuit, which was launched almost seven years ago in August 2018.

Journalist Nick McKenzie arrives at the Federal Court in Sydney earlier this month.Credit: Sam Mooy

That recording prompted Roberts-Smith to apply to the court to reopen his appeal before the court’s decision was delivered to allow the recording to be admitted into evidence.

The court unanimously dismissed the application to reopen the appeal on Friday, and ordered Roberts-Smith to pay the newspapers’ costs.

Tory Maguire, Nine’s managing director of publishing, said the decision was an “emphatic win for Nine” and a “great day for investigative journalism”.

“Nine has unswervingly backed our reporters and editors throughout this matter, reinforcing our longstanding commitment to quality journalism in the public interest,” she said.

“The court has confirmed the stories published by The Age and The Sydney Morning Herald resulting from an investigation by award-winning reporters Nick McKenzie and Chris Masters have been proven true.”

Maguire said the decision was also vindication for the SAS soldiers who “demonstrated courage by boldly speaking the truth about what happened in Afghanistan”.

“The court did not accept there was any breach of legal privilege by Nick McKenzie and dismissed Roberts-Smith’s recent attempt to disrupt the appeal and ordered he pay Nine’s costs related to this,” Maguire said.

“Nick is an outstanding journalist, respected by his editors, colleagues at Nine and peers in newsrooms across the country.”

McKenzie said: “I want to pay tribute and express my deep gratitude to the brave SASR soldiers who not only fought for their country in Afghanistan but fought for the Australian public to learn the truth: that Ben Roberts-Smith is a war criminal.

“I also want to acknowledge the victims of Roberts-Smith, including the Afghan children and women who have lost their fathers and husbands who were murdered on the directions of Roberts-Smith.”

Roberts-Smith said he had “only ever asked for a fair and just hearing – that has not occurred”.

with Cindy Yin

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