Ben Roberts-Smith loses ‘war crimes’ defamation appeal
Ben Roberts-Smith has lost his bid to overturn the finding in his defamation case that he committed war crimes in Afghanistan, but immediately vowed to challenge the verdict in the High Court.
Ben Roberts-Smith has lost his bid to overturn the finding in his defamation case that he committed war crimes in Afghanistan, but immediately vowed to challenge the verdict in the High Court.
On Friday the Full Court of the Federal Court upheld judge Anthony Besanko’s finding that, on the balance of probabilities, the former SAS soldier was complicit in the murder of four unarmed prisoners, including a farmer 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.
Justices Nye Perram, Anna Katzmann and Geoffrey Kennett rejected a claim by Mr Roberts-Smith that he had been the victim of a miscarriage of justice following the release of a tape in which Nine reporter Nick McKenzie claimed to have access to the former SAS soldier’s legal strategy.
Mr Roberts-Smith alleged his ex-wife, Emma Roberts, had access to his email account and that she and her friend Danielle Scott had passed on his privileged messages to McKenzie.
In interlocutory hearings two weeks ago, McKenzie strongly denied he had access to any legally privileged information.
However, the Full Court on Friday dismissed both the interlocutory application and the appeal, meaning Mr Roberts-Smith’s patron, billionaire Kerry Stokes, remains on the hook for upwards of $30m in legal costs, now also including the costs of the lengthy appeal.
The court did not publish its full reasons for the decision, allowing the commonwealth time to examine the judgment to ensure no inadvertent disclosure of national security information.
In a summary, the Full Court said: “We are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men and to the extent that we have discerned error in the reasons of the primary judge, the errors were inconsequential.”
Within minutes of the decision being handed down, Mr Roberts-Smith vowed to challenge the judgment in the High Court, the last avenue for the Victoria Cross recipient to try to restore his treasured reputation as a war hero.
In a statement, Mr Roberts-Smith said that while he accepted the decision of the Full Court, he continued to maintain his innocence and deny “these egregious spiteful allegations”.
“We will immediately seek to challenge this judgment in the High Court of Australia, including the trial misconduct by Mr McKenzie,” he said.
“It is extremely disappointing that the Full Court chose to exclude critically relevant evidence of the unethical conduct of journalist Nick McKenzie.”
Mr Roberts-Smith slammed the Nine board, which he said had “unashamedly used its power, influence, and money to secure the silence of a witness 10 days before my appeal commenced in February 2024”.
Nine Publishing managing director Tory Maguire welcomed the “emphatic win” as a vindication for the journalists and for the soldiers of the Australian Defence Force’s SAS Regiment, “who demonstrated courage by boldly speaking the truth about what happened in Afghanistan”.
“The court did not accept there was any breach of legal privilege by Nick McKenzie and dismissed Roberts-Smith’s recent attempt to disrupt the appeal,” Mr Maguire said.
McKenzie paid tribute to the SASR soldiers who “not only fought for their country in Afghanistan but fought for the Australian public to learn the truth: that Ben Roberts-Smith is a war criminal”.
“I also want to acknowledge the victims of Roberts-Smith, including the Afghan children and women who have lost their fathers and husbands who were murdered on the directions of Roberts-Smith,” McKenzie said.
“It should not be left to journalists and brave soldiers to stand up to a war criminal. Australian authorities must hold Ben Roberts-Smith accountable before our criminal justice system.”
In his defamation case against Nine, Mr Roberts-Smith had claimed he was wrongly portrayed as a war criminal, bully, and domestic abuser in six articles published in The Sydney Morning Herald, The Age and the Canberra Times in 2018.
Justice Besanko found Nine had failed to prove that Mr Roberts-Smith abused his former mistress, known in the case as Person 17, saying he was not satisfied her evidence was “sufficiently reliable to establish the assault occurred”.
But he found Nine had made out a defence of contextual truth, meaning the allegation did not further harm his reputation given the findings of murder.
During a 10-day appeal hearing in February last year, Mr Roberts-Smith’s legal team argued there were inconsistencies in eyewitness accounts to the alleged killings and that Justice Besanko had not given due weight to the presumption of innocence.
On Friday, the Full Court noted Mr Roberts-Smith’s argument that the evidence upon which Nine relied “was not sufficiently cogent to satisfy the respondents’ burden of proof and that the primary judge gave no, or no adequate, weight to the presumption of innocence”.
The appeal judges rejected the argument, saying that after careful consideration they were “unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men.”
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