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.

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: 

Originally published as Ben Roberts-Smith defamation trial: Murderer, war criminal: Judge throws out BRS defamation case

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