Roberts-Smith war crime suggested ‘recklessness or brazenness’, court says

Ben Roberts-Smith’s actions in killing an unarmed man with a prosthetic leg were so dramatic as to suggest “a certain recklessness or perhaps even brazenness”, a court has said as it dismissed his high-stakes appeal against a decision that found he committed war crimes in Afghanistan.

The former Special Air Service corporal launched a court challenge after losing his defamation case against The Age and The Sydney Morning Herald following a trial spanning more than 100 days in 2021-22.

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

His appeal was dismissed with costs on Friday by the Full Court of the Federal Court.

The court released the reasons for its decision on Tuesday after a short delay to ensure the Commonwealth had time to consider whether national security information should be removed.

Roberts-Smith, a Victoria Cross recipient and Australia’s most decorated living soldier, had alleged the newspapers defamed him in a series of articles in 2018 suggesting he was a war criminal.

In his 2023 decision, then-Federal Court justice Anthony Besanko upheld the newspapers’ truth defence and found Roberts-Smith was complicit in the murder of four unarmed prisoners, including the man with the prosthetic leg, while deployed in Afghanistan between 2009 and 2012.

Federal Court Justices Nye Perram, Anna Katzmann and Geoffrey Kennett found the evidence was sufficiently cogent to support Besanko’s findings that Roberts-Smith murdered four Afghan men, contrary to the rules of engagement that bound the SAS.

At the centre of the case was an allegation that Roberts-Smith machine-gunned a man with a prosthetic leg outside a compound dubbed Whiskey 108 during a mission on Easter Sunday, 2009.

The appeal court said it found “no error” in Besanko’s approach, pointing to three eyewitness accounts given in court.

“The problem for [Roberts-Smith] is that, unlike most homicides, there were three eyewitnesses to this murder,” the court said.

‘When all is said and done, it is a rare murder that is witnessed by three independent witnesses.’

Federal Court Justices Nye Perram, Anna Katzmann and Geoffrey Kennett

“When all is said and done, it is a rare murder that is witnessed by three independent witnesses.”

Efforts by Roberts-Smith’s legal team “to construct uncertainty out of inconsistencies in peripheral detail are unpersuasive”, the judges said.

The eyewitness “testimonies each had the three key central features described by the primary judge: the forcible and aggressive moving of a [prisoner] to the north-western part of Whiskey 108; the hearing of a burst of machine-gun fire; and the seeing of a man being machine-gunned”.

“This strength of this evidence cannot be erased, and is in no way undermined, by peripheral inconsistencies.”

The court noted the evidence of Person 24, a former SAS soldier and eyewitness, who had responded “when challenged under cross-examination that it must be difficult for him to recall events which had occurred 13 years ago … ‘Not when it comes to watching an execution’.”

The appeal court said that “the killing of the man with the prosthetic leg in such a dramatic fashion does suggest a certain recklessness or perhaps even brazenness” on Roberts-Smith’s part.

“Be that as it may, that [he] was reckless in his actions accords with the evidence of Person 18 who heard Person 5 remonstrating with [Roberts-Smith] about the killing in circumstances where there might be a drone overhead.”

Person 18, a serving SAS soldier, gave evidence during the trial that he overheard a soldier dubbed Person 5 telling Roberts-Smith during the mission that “you’ve just done this” while a drone was potentially “still flying above”.

High cost of litigation

The war veteran’s defamation case was launched in 2018 against The Age and the Herald, owned by Nine, and The Canberra Times, now under separate ownership. The trial started in 2021 and concluded in July 2022 after 110 days, 41 witnesses and a combined $30 million in legal costs. The appeal cost the parties a further $4 million.

Roberts-Smith’s former employer, Seven West Media chairman Kerry Stokes, bankrolled the trial using private funds but did not pay for the appeal. Stokes is on the hook for Nine’s costs in the trial.

Roberts-Smith agreed in 2023 to pay $910,000 into court as security for Nine’s legal costs as a condition of bringing the appeal.

The murders

The Roberts-Smith litigation is among the largest and most expensive defamation trials ever conducted in Australia and the first to examine in detail allegations of war crimes against members of the SAS.

In another centrepiece allegation in the case, the newspapers alleged Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in Darwan on September 11, 2012, before procuring soldiers under his command to shoot the villager. Besanko found the murder allegation was proven.

In a second key allegation, the newspapers said Roberts-Smith was involved in two murders during the mission on Easter Sunday, 2009, after two Afghan men were discovered in a tunnel in the compound dubbed Whiskey 108.

They alleged Roberts-Smith machine-gunned the man with the prosthetic leg and directed a “rookie” soldier, Person 4, to kill the second man as a form of “blooding” or initiation.

Besanko found these allegations were proven.

He also found a fourth murder allegation, which did not appear in the news reports but was part of the newspapers’ defence, had been proven, relating to directions Roberts-Smith gave via an interpreter for an unarmed Afghan man to be shot by a member of the Afghan Partner Force in 2012.

The appeal court said Besanko was “acutely conscious of the seriousness of the findings the [newspapers] called upon him to make”.

“[We] are satisfied that his Honour’s conclusions with respect to the substantial truth of the relevant imputations conveyed by the respondents’ articles were correct.”

Besanko also found the newspapers had proven it was substantially true that Roberts-Smith had assaulted unarmed Afghan prisoners in 2010 and 2012, and had bullied a soldier. Those findings were not challenged.

Besanko did not find the outlets had proven Roberts-Smith committed an act of domestic violence against a former lover, but in light of the other proven allegations he found that allegation did not further harm Roberts-Smith’s reputation.

Roberts-Smith has foreshadowed a potential High Court appeal.

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