Ben Roberts-Smith lied: men were found in tunnel and shot, judge finds

Justice Anthony Besanko accepted the evidence of witnesses who implicated Ben Roberts-Smith in the execution of two Afghan prisoners.

Ben Roberts-Smith outside court. Picture: NCA NewsWire / Christian Gilles

One of the enduring mysteries of the allegations against Ben Roberts-Smith – whether two Afghan men were found hiding in a tunnel and shot – has been answered by the judge, in his newly released findings.

The two men were dragged from the tunnel, Justice Anthony Besanko has found, ruling that Mr Roberts-Smith was “not an honest and reliable witness”, and nor was the evidence of several men who gave evidence at the trial on his behalf.

Justice Besanko on Thursday found the Nine newspapers have proved Mr Roberts-Smith unlawfully killed four unarmed Afghan prisoners between 2009 and 2012 but delayed releasing his full judgment until it had been vetted for national security reasons.

In the full judgment released on Monday afternoon Justice Besanko accepted the evidence of a number of witnesses who implicated Mr Roberts-Smith in the execution of two Afghan prisoners at a compound known as Whiskey 108 on Easter Sunday in 2009.

During the trial some witnesses had backed Mr Roberts-Smith’s claim that no one was found in the tunnel and that both the men killed at Whiskey 108 were legitimate targets – one armed with a rifle, the other a “spotter” with a radio.

Justice Anthony Besanko delivers his verdict in the Roberts-Smith defamation case. Picture: Supplied

Those soldiers included the only man who actually entered the tunnel, a slightly-built New Zealander known as Person 35 who had stripped off his armour and crawled into the narrow space armed only with his service pistol.

But Justice Besanko did not accept the evidence of the wiry Kiwi.

Instead he accepted the evidence of at least three of Nine’ witnesses — Persons 40, 42 and 43 — that they saw men come out of the tunnel. Two others — Persons 18 and 41 — saw fighting age males under guard in the courtyard when they went into the courtyard not long after the tunnel’s discovery.

“No plausible motive for lying was identified in the case of these witnesses and nor was there any evidence to suggest that they had colluded to present a false account.”

The evidence of the applicant’s witnesses was that there were no men in the tunnel.

Justice Besanko rejected claims by Mr Roberts-Smith that Person 41, in particular – who witnessed the shooting – was disqualified by subsequent mental health issues.

Roberts-Smith pictured in Afghanistan. Picture: Supplied

“I do not consider that anything emerged from the evidence of Person 41, or indeed the evidence in the case, that suggested Person 41 had a mental health illness or issue which had or may have affected his evidence,” Justice Besanko said.

Mr Roberts-Smith’s account was “highly improbable when all the matters I have identified previously are considered together,” the judge ruled.

“The applicant (Mr Roberts-Smith) 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.

“I take into account the fact that Persons 5, 29 and 35 are close friends of the applicant, that he had arranged the payment of the legal fees of Persons 5 and 35 respectively and, in the case of all three, he has had discussions with them concerning events at W108.

“Person 35’s evidence was unsatisfactory as to whether the tunnel was found during the clearance of the compound or while the SSE process was being undertaken.”