Australia’s most decorated living soldier, Ben Roberts-Smith, callously murdered four unarmed civilians while serving with the Special Air Service in Afghanistan, a judge has found, and now faces the prospect of serious criminal charges and being stripped of his Victoria Cross.
Handing down his decision in the high-stakes defamation action brought by the former soldier against Nine newspapers, Federal Court judge Anthony Besanko ruled on Thursday that Mr Roberts-Smith had murdered four prisoners, including a farmer who was kicked off a cliff in the village of Darwan, and a one-legged man dragged from a tunnel at the compound known as Whiskey 108.
Nine Entertainment is expected to pursue Seven West chairman Kerry Stokes personally for costs in the failed defamation case, with legal fees estimated at more than $25m and potentially up to $40m.
On Thursday Nine’s lawyers indicated they would apply for a special order as to costs in relation to Mr Roberts-Smith “and any third party”, believed to be a reference to the media mogul, who bankrolled the ex-soldier’s case.
Although a civil case, Justice Besanko found that Mr Roberts-Smith broke the moral and legal rules of military engagement and was therefore a criminal.
Legal observers believe the judgment significantly increases the likelihood that Mr Roberts-Smith will face criminal charges, with investigators from the Australian Federal Police and the Office of Special Investigations currently assessing evidence.
Whatever further action follows, the landmark defamation judgment extinguishes Mr Roberts-Smith’s treasured reputation as a war hero.
Nine had its biggest win over the centrepiece allegation that Mr Roberts-Smith kicked an unarmed Afghan detainee named Ali Jan off a cliff and then killed him. The report claimed Mr Roberts-Smith kicked the handcuffed farmer off a cliff in Darwan in September 2012, and then – with another SAS soldier known as Person 11 – dragged him aside and shot him dead.
An Australian soldier known as Person 4, serving as second in command to Mr Roberts-Smith, told the court the VC recipient took a few steps forward and kicked the man in the chest, sending him sailing over the edge.
Ali Jan was “catapulted backwards and fell down the slope”, where he landed in a dry creek bed, crashing into a rock so forcefully it sent teeth exploding from his mouth.
Person 4 said Mr Roberts-Smith instructed him and Person 11 to drag the man to a nearby tree.
Person 4 testified that, a short time later, as he walked away, he heard shots ring out and turned to see Person 11 with his rifle in the firing position while Mr Roberts-Smith stood by watching the execution.
Justice Besanko also found that Mr Roberts-Smith murdered an Afghan prisoner by shooting him in the back with a machine gun and ordered another trooper to shoot a second Afghan in the head.
The alleged killing of the two detainees hauled from a tunnel during a raid on a Taliban compound codenamed Whiskey 108 on Easter Sunday, 2009, was one of the central claims against Mr Roberts-Smith.
Several SAS soldiers gave evidence for Nine that at least two men emerge from a tunnel (“but could easily have been three”, according to one witness) before they were led away by Mr Roberts-Smith’s patrol.
It had been alleged that Australia’s most decorated living soldier was complicit in the murder of unarmed prisoners in Afghanistan, bullied his own colleagues and bashed his former mistress.
Justice Besanko found Nine had failed to prove that 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”.
Justice Besanko ruled that allegations Mr Roberts-Smith was complicit in further murders in Syahchow and Fasil, in southern Afghanistan in 2012, were not proven.
Other findings included that Mr Roberts-Smith authorised the execution of an unarmed Afghan by a junior trooper in his patrol; that he bullied a fellow soldier; and that he bashed an unarmed Afghan in the face with his fists and in the stomach with his knee.
Outside the court, journalist Nick McKenzie labelled Mr Roberts-Smith a “war criminal, a bully and a liar”.
“It’s a day of justice for the brave men of the SAS who stood up and told the truth about who Ben Roberts-Smith is,” McKenzie said. “There’s justice for the Afghan villagers who stood up in courts.”
Justice Besanko began reading a summary of his judgment at 2.15pm on Thursday in the Federal Court, following an attempt by the commonwealth to block the verdict until it had cleared the judgment on national security grounds.
The full written judgment is not likely to be available until Monday while the commonwealth’s lawyers vet the lengthy document.
Mr Roberts-Smith was not in court and is believed to be still in Bali, where he was pictured relaxing by a pool on Wednesday.
The decision comes almost a year after the trial concluded, with the judge required to consider more than 100 days of evidence given by 41 witnesses.
Justice Besanko granted Mr Roberts-Smith 42 days to digest his judgment and consider an appeal, but legal sources believe an appeal is inevitable, with Mr Stokes, reportedly still convinced of his innocence.
