Key findings which led to the loss of Ben Roberts-Smith’s defamation case

Now that the full 736 page judgment has been released, here are the key findings which led Ben Roberts-Smith to lose his case.

Decorated war veteran Ben Roberts-Smith has been dubbed an inconsistent witness with “motives to lie” in a scathing assessment by a judge, one of many reasons he lost his defamation case against Nine Newspapers.

Justice Anthony Besanko last week ruled some of the 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.

While there was silence across the courtroom as Victoria Cross recipient was found to be a murderer and a war criminal, the public has had to wait until Monday for the 736-page judgment to be released after an 11th-hour request by the Commonwealth to ensure it would not reveal any sensitive information.

Mr Roberts-Smith and four of the witnesses he called were deemed “not honest or reliable” in their evidence about two of the murders.

“I have difficulty accepting the applicant’s (Mr Roberts-Smith) evidence on any disputed issue,” Justice Besank said in the judgment.

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

The full judgment has been released following Ben Roberts-Smith’s loss in his defamation case. Picture: NCA NewsWire / Dylan Coker

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

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 “frog marched” a man with a prosthetic leg out of a secret tunnel at the compound.

He “accepted” multiple people’s evidence about witnessing the execution of the men, finding Mr Roberts-Smith shot the man with a machine gun in the back.

In his judgment, Justice Besanko found Mr Roberts-Smith had given a “highly improbable” account of events, riddled with “inconsistencies”.

“A number of matters reflect adversely on the applicant’s (Mr Robert-Smith) credit and some such as, for example, the threatening letters to Person 18 reflect very poorly on his credit,” the judge said.

“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.”

Justice Besanko found three witnesses who testified for Mr Roberts-Smith were close friends, and he had arranged the payment of the legal fees for two of them.

The judge also found the evidence of these witnesses showed how “closely aligned” they were with Mr Roberts-Smith.

Justice Besanko found two Afghan males came out of the courtyard at Whiskey 108 and were placed under confinement by Australian soldiers, with one being executed by a soldier at the direction of Mr Roberts-Smith.

The judge found Mr Roberts-Smith encouraged soldiers to use a murdered man’s prosthetic leg as a drinking vessel. Picture: Federal Court

The other man was “executed by the applicant outside the northwestern corner of Whiskey 108”, the judgment reads.

While it is not known who took the man’s prosthetic leg back to Australia, but the judge said Mr Roberts-Smith did “encourage soldiers to use it as a novelty beer drinking vessel”, which is the “sting of the imputation”.

The judge did not accept the evidence given by Mr Roberts-Smith or his witnesses – all claimed there were no men in the tunnel.

Justice Besanko ruled they were lying.

“There were two insurgents in the tunnel and when they came out they were obviously very frightened,” he found.

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.

“Shortly prior to the extraction from Darwan, Ali Jan, who was handcuffed at the time, was taken to a position near Mangul Rahmi’s compound adjacent to a small cliff to the dry creek bed below or a steep slope to the dry creek bed below,” the judgment reads.

“He was held by the shoulder by Person 11 and facing the applicant. The applicant took some steps back and then moved forward and kicked Ali Jan off the small cliff or steep slope into the dry creek bed below.”

Justice Besanko said Ali Jan was injured before he was dragged to a cornfield.

He found Mr Roberts-Smith directed another soldier named Person 11 to drag the farmer and shoot him as he stood in the cornfield.

Journalists Chris Masters and Nick McKenzie after the judgment in Ben Roberts Smith v Nine. Picture: NCA NewsWire / Nikki Short

“An SSE process was subsequently performed in relation to Ali Jan and, during that time, the handcuffs were removed and an ICOM radio was placed on Ali Jan’s body by either the applicant or Person 11,” the judgment says.

“That was done before photographs were taken.”

Justice Besanko found Mr Roberts-Smith had then falsely reported that Ali Jan was a “spotter” in the cornfield, and his findings led to the conclusion he murdered the farmer.

The judge also found the key SAS eyewitness to the murder, named Person 4 in the proceedings, was an “honest witness”.

“I do not consider that any of his evidence was driven by ill-will or professional jealousy against the applicant,” the judge ruled.

However, Justice Besanko again found Mr Roberts-Smith gave “unsatisfactory” evidence, finding he lied in court about the height of the embankment.

“He has lied about using his foot to move the insurgent near the Helmand River with a view to possibly explaining evidence from witnesses which might otherwise seem unfavourable to him,” the judge ruled.

The judge also found the newspapers had proven a fourth murder, which was not in the articles but was argued in court as part of the defence.

Justice Besanko did not find Mr Roberts-Smith had committed domestic violence on a former mistress, but ultimately found it did not further harm his reputation given the findings of murder, and dismissed the case.

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.