Ben Roberts-Smith defamation trial: Murderer, war criminal: Judge throws out BRS defamation case
As a judge found claims Ben Roberts-Smith was a war criminal and murderer were true and dismissed his case against Nine newspapers, the former soldier's financial backer and employer, billionaire Kerry Stokes, expressed his disappointment at the judgment.
Matthew Benns. Shannon Tonkin
3 min read
June 1, 2023 - 5:00AM
Australia’s most decorated soldier, Ben Roberts-Smith, has lost his defamation case against three Australian newspapers, with a judge finding the media outlets successfully established as “substantially true” allegations they published in a series of articles that the Victoria Cross recipient had been involved in the murder of three unarmed, detained Afghan civilians.
In a judgement handed down in Sydney on Thursday afternoon, Justice Anthony Besanko dismissed the case, finding the papers’ imputations that Mr Roberts-Smith was a war criminal, a murderer and a bully who had “broke[n] the military rules of military engagement” due to his conduct while deployed with the Special Air Services Regiment in Afghanistan between 2009 and 2012 were substantially true.
However, he found the media outlets had not established the truth of allegations printed in its papers that Mr Roberts-Smith had physically abused his former lover following a function at parliament house in Canberra in 2018, or killed two unarmed prisoners in separate missions at Syachow and Fasil.
In light of his findings, Justice Besanko dismissed Mr Roberts-Smith’s law suits against the Sydney Morning Herald, the Age and the Canberra Times.
Channel Seven owner Kerry Stokes, who financially backed Roberts-Smith’s defamation case, expressed his disappointment at the judgment.
“I am disappointed at hearing of the result in today’s judgment,” he said. "The judgment does not accord with the man I know," he said.
Ben Roberts-Smith in action in Afghanistan
“I know this will be particularly hard for Ben, who has always maintained his innocence."
Mr Roberts-Smith has been on leave from his job as general manager of Mr Stokes’ Seven Network in Queensland. He is currently in Bali and did not return for the hearing.
Mr Stokes said he would be talking to Mr Roberts-Smith in the coming days. “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”.
The court received hundreds of documents into evidence and heard testimony from 41 witnesses in the months-long trial, many of whom were Mr Roberts-Smith’s Special Air Service Regiment colleagues and team mates on his deployments in Afghanistan.
At the centre of the defamation suit were six articles published by Nine newspapers between June and August 2018, which accused Mr Roberts-Smith of being complicit in the execution of six detained Afghan prisoners while deployed with the SAS.
Chief among the allegations was an accusation Mr Roberts-Smith kicked a detained and handcuffed man, Ali Jan, off a cliff in the village of Darwan in September 2012, before another soldier, known as Person 11, shot Mr Jan dead in a nearby cornfield as Mr Roberts-Smith watched on.
Kerry Stokes funded Ben Roberts-Smith's case. Picture: NCA NewsWire / Martin Ollman
Mr Roberts-Smith and Person 11 denied the allegations, saying the man was an insurgent spotter who was shot dead because they’d discovered him hiding in a cornfield and carrying a radio.
Mr Roberts-Smith claimed the articles defamed him by implying he was a murderer who had “broke[n] the moral and legal rules of military engagement” and thereby “disgraced his country and the Australian army”.
In court on Thursday, Justice Besanko found, based on the evidence he had heard, that those imputations were substantially true.
The media outlets further alleged Mr Roberts-Smith was involved in the execution of two unarmed, detained men in a Taliban compound in the Uruzgan province in April 2009.
Mr Roberts-Smith told the court during his testimony that he shot a man, who he later found out had a prosthetic leg, after he saw him running, carrying a weapon, outside the compound.
The newspapers relied on evidence from other soldiers that the man was unarmed and detained as a “person under control”, or PUC, inside the compound when Mr Roberts-Smith shot him in what one soldier described as an “exhibition execution”.
Drunken parties at the SAS bar known as The Fat Ladies Arms in Afghanistan included soldiers drinking from a dead Afghan's prosthetic leg. Picture: Supplied
The man’s prosthetic leg was taken back to the Australian base in Tarin Kowt where it was used by SAS soldiers as a drinking vessel. Mr Roberts-Smith denies drinking from the leg.
It was further alleged in the articles that Mr Roberts-Smith instructed a junior soldier, Person 4, to execute a second unarmed Afghan man at Whiskey 108 in order to “blood the rookie”.
Mr Roberts-Smith denied the allegations. However, Justice Besanko found they were substantially true.
The media outlets further alleged in articles that Mr Roberts-Smith punched his ex-mistress, known as Person 17, in the face in an act of domestic violence following a function at parliament house in Canberra in March 2018.
Mr Roberts-Smith denied ever hitting the woman in his evidence, and Justice Besanko found the papers had not established the allegations were substantially true.
Justice Besanko delivered the judgment after a marathon defamation case.
"I'm not satisfied Person 17's evidence is sufficiently reliable to establish the assault occurred and that [the imputations] are substantially true," he said.
Justice Besanko also found the papers had not established the substantial truth of two sets of allegations contained in the articles about the killing of a detained Afghan man during a mission to Syachow in October 2012 and the execution of a teen at Fasil in November 2012.
“The respondents have not established the particulars of truth with respect to the mission to Syahchow …the respondents have not established the particulars of truth with respect to the mission to Fasil,” Justice Besanko said in his judgment.
Our live blog has now closed, but read on, to see how proceedings played out in court earlier on Thursday:
Here's what the judge found in regard to the allegations against Ben Roberts-Smith:
WHISKEY 108 COMPOUND Australian SAS troops raided a compound called Whiskey 108 in April 2009 where Nine Newspapers allege two men were found hiding in a tunnel. Roberts-Smith allegedly “frog marched” a man with a prosthetic leg outside the compound and machine-gunned him in the back. He then allegedly ordered another soldier to shoot the second man, which he did. FINDING: Substantially true
Whiskey 108: A picture capturing the moment SAS troops raided the Taliban compound at the centre of Ben Roberts-Smith’s trial. Supplied
KICKING OVER THE CLIFF AT DARWAN The newspapers allege that SAS troops went to Darwan in Afghanistan‘s Uruzgan province in September 2012 where Roberts-Smith kicked a handcuffed farmer called Ali Jan over a cliff. The farmer was then dragged to a cornfield and shot by Roberts-Smith or another soldier called Person 11. FINDING: Substantially true
SHOOTING THE PUC AT CHENARTU Nine alleges Roberts-Smith ordered the execution of an Afghan PUC (person under control) after a weapons cache was found in the village of Chenartu in late 2012. A soldier known as Person 14 said he kicked a wall and the weapons fell out. FINDING: Substantially true
A weapons cache, including an AK-47, found by the SAS in October 2012.
‘BLOODING' OF PERSON 66 AT SYACHOW A former SAS soldier code-named Person 66 was allegedly ordered by Roberts-Smith to shoot dead an Afghan PUC during a mission to Syachow in October 2012. The court heard this was allegedly a ritual to “blood” junior soldiers. FINDING: Substantial truth not established
THE HILUX AT FASIL: The newspapers alleged that during Roberts-Smith’s final operation in Afghanistan at Fasil in Uruzgan province he was given custody of two men taken from a Toyota HiLux including a teenager who was “shaking in terror”. A soldier known as Person 16 claimed Roberts-Smith told him that he had shot the teen in the head with his pistol. FINDING: Substantial truth not established
DOMESTIC VIOLENCE: Roberts-Smith was having an affair with a woman identified as Person 17 who claimed he punched her on the side of the face and eye after a dinner at Parliament House in Canberra in March 2018, according to the newspapers' defence in the case. FINDING: Substantial truth not established (but contextual truth established)
BULLYING OF TROOPER 'J': The newspapers alleged Roberts-Smith threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with Roberts-Smith’s account. FINDING: Substantial truth not established (but contextual truth established)
There are hugs all around in the Nine Newspaper's camp, with journalists Nick McKenzie and Chris Masters embracing afterwards.
As Justice Anthony Besanko was still in the midst of reading out his decision, Mr McKenzie tweeted one-word: "Justice".
All parties involved in the court case have now moved into closed-court as they deal with the judgement on matters of national security, which had been heard in secret throughout the trial.
Nick McKenzie, right, flanked by Chris Masters speaks to the press outside the Federal Court in Sydney. Picture: Christian Gilles
Decorated war veteran Ben Roberts-Smith, 44, did not front the Federal Court on Thursday as Justice Anthony Besanko found imputations put forward across eight 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, not all of the defamatory imputations, in a major win for the newspapers.
Justice Besanko held Mr Roberts-Smith was a murderer and a war criminal in his conclusions.
“The applicant’s conduct and actions on the mission to W108 has found means that the respondents have established the substantial truth of imputations two, three, four, five, six and nine,” Justice Besanko told the court.
“The applicant’s conduct and actions to the mission to Darwan has found means that the respondents have established the substantial truth of imputations one, two and three.”
The full reasons for the long-awaited outcome in the multimillion-dollar defamation trial between war veteran Ben Roberts-Smith and Nine newspapers could be delayed following an 11th-hour decision.
Justice Besanko dismissed the proceedings against Roberts-Smith, after finding that the newspapers have proven some of the allegations of war crimes against him.
Besanko has agreed to delay the publication of the judgment to ensure that no national security sensitive information is inadvertently released.
But the full reasons for the long-awaited outcome in the multimillion-dollar defamation trial between war veteran Ben Roberts-Smith and Nine newspapers could be delayed following an 11th-hour decision.
The 44-year-old has been anxiously waiting 309 days for the result in the trial of the century.
Ben Roberts-Smith has largely lost his case against Nine newspapers with Justice Anthony Besanko finding largely in favour of the media outlets.
The judge has dismissed the case after finding some of the war crime allegations made by Nine in a series of articles were true.
The judge's major conclusions were:
Justice Besanko found Nine newspapers established that their allegations that Mr Roberts-Smith was involved in the unlawful killing of two unarmed, detained men inside a Taliban base known as Whiskey 108 on Easter Sunday in 2009 was "substantially true".
He also found the media outlets had established the "substantial truth" of allegations Mr Roberts-Smith committed a war crime by kicking a soldier off a cliff and thereby he "broke the moral and legal rules of military engagement and is therefore a criminal".
Justice Besanko found the newspapers did not establish the truth of allegations Mr Roberts-Smith abused his mistress.
"I'm not satisfied Person 17's evidence is sufficiently reliable to establish the assault occurred and that [the imputations] are substantially true," he said.
"But they have made out a defence of contextual truth".
In light of his findings, Justice Besanko has dismissed Mr Roberts-Smith lawsuits against the newspapers.
National security issues surround some allegations
The second set of articles, published around the same time, make the following impiutations against Mr Roberts-Smith, it is alleged:
Imputation 1: The Applicant while a member of the SASR, murdered an unarmed and defenceless Afghan civilian, by kicking him of a cliff and procuring the soldiers under his command to shoot him
Imputation 2: The Applicant broke the moral and legal rules of military engagement and is therefore a criminal
Imputation 3: The Applicant disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan.
The fifth and sixth articles, carried the following imputations, Mr Roberts-Smith says:
Imputation 1: The Applicant is a hypocrite who publicly supported Rosie Batty, a domestic violence campaigner, when in private he abused a woman;
Imputation 2: The Applicant as deputy commander of a 2009 SASR patrol, authorised the execution of an unarmed Afghan by a junior trooper in his patrol;
Imputation 3: The Applicant during the course of his 2010 deployment to Afghanistan, 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:
Imputation 4: The Applicant as patrol commander in 2012 authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat;
Imputation 5: The Applicant engaged in a campaign of bullying against a small and quiet soldier called Trooper M which included threats of violence;
Imputation 6: The Applicant threatened to report Trooper J to the International Criminal Court for firing at civilians, unless he provided an account of a friendly fire incident that was consistent with the Applicant's;
Six publications are complained of, but the articles are divided into three groups, Justice Besanko says.
The first was published on the 8th and 9th of June. They carry the following imputations, according to Mr Roberts-Smith:
Imputation 1: The applicant while a member of the SAS murdered an unarmed and defenceless Afghan civilian and procuring the soldiers under his command to shoot him.
Imputation 2: The Applicant broke the moral and legal rules of military engagement and is therefore a criminal
Imputation 3: The Applicant disgraced his country Australia and the Australian army by his conduct as a member of the SASR in Afghanistan
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