Judge to rule in Ben Roberts-Smith “war crimes” case

A judge will rule next week on whether Ben Roberts-Smith took part in the murder of civilians in Afghanistan or has been wrongly accused by Nine newspapers.

Ben Roberts-Smith’s reputation will be decided next week by a judge as he awaits ruling on whether he has been defamed or is a war criminal.

A judge will next week rule on whether Ben Roberts-Smith is a murderous war criminal or a wronged war hero, thereby either shattering the reputation of Australia’s most decorated soldier or striking a devastating – and hugely expensive - blow on the newspapers that published the allegations.

Judge Anthony Besanko has spent 10 months weighing his decision in Mr Robert-Smith’s defamation case against Nine newspapers over allegations he was involved in the murders of six civilians in Afghanistan and violence against his former mistress.

Next Thursday, Judge Besanko will hand down his judgment in a case that ran for more than three months and is likely to eclipse $25m in legal costs.

The de facto war crimes trial involved a large number of allegations across several incidents, so Mr Roberts-Smith may win on some counts and not others.

However, a single finding that he was involved in any of the ­alleged murders would be devastating to his reputation, and to any award of damages.

Several SAS soldiers gave eyewitness accounts of the Victoria Cross ­recipient’s alleged involvement in murder, including kicking a handcuffed farmer off a cliff before ordering him shot dead and machine-gunning a prisoner to death.

Mr Roberts-Smith has denied all the claims and some soldiers gave evidence backing his version of events. His lawyers claimed former comrades were driven by bitterness and jealousy over his VC award.

The trial laid bare deep personal animosities that had divided Australia’s premier fighting force into two distinct camps for more than a decade, with hatred of – or loyalty towards – Mr Roberts-Smith at the core of the split.

The reputation of the SAS had already been tarnished by the Brereton inquiry’s finding that there was credible evidence that special forces soldiers committed 39 murders in Afghanistan and had covered them up by maintaining a band-of-brothers code of silence.

The last weeks of the trial were overshadowed by allegations of collusion between a small inner circle of Mr Roberts-Smith’s witnesses, a potentially fatal blow for significant parts of his case.

The onus is on Nine to prove the substantial truth of what its journalists wrote, but it must do so only on the balance of probabilities, not to a criminal case standard of beyond reasonable doubt.

Also watching the outcome with interest will be war crimes investigators from the Office of the Special Investigator. Their focus is not just on Mr Roberts-Smith – many witnesses gave evidence of crimes committed by other SAS soldiers. Others have implicated themselves in covering up war crimes.

Judge Besanko’s decision is not necessarily the end of the defamation case. The losing side may seek leave to appeal.

Media mogul Kerry Stokes, who employed ­Mr Roberts-Smith at his Seven Network and has bankrolled ­the defamation case, is said to remain convinced of ­the former soldier’s innocence.