Ben Roberts-Smith’s explosive ‘war crimes’ defamation case begins

Australia’s most decorated soldier Ben Roberts-Smith will be the first person to give evidence after his high-profile defamation trial kicks off today.

The defamation trial launched by Victoria Cross recipient Ben Roberts-Smith against Nine newspapers will begin Monday morning, casting closely guarded war crime allegations, classified reports and broken relationships into the open.

That is despite an eleventh hour claim by the decorated soldier that his former wife may have “contaminated” the trial by leaking confidential information to the newspapers’ legal team.

Mr Roberts-Smith will walk into Sydney’s Federal Court tower on Monday morning flanked by his lawyer Paul Svilans and barrister Bruce McClintock SC ahead of the two-month trial before Justice Anthony Besanko.

The decorated soldier’s parents, former Supreme Court of Western Australia judge of appeal Len Roberts-Smith and wife Sue, also arrived in Sydney over the weekend to support him and attend the trial.

He will come face-to-face in court with his opponents: The Sydney Morning Herald, The Age and journalists Nick McKenzie, Chris Masters and David Wroe.

Victoria Cross recipient Benjamin Roberts-Smith prepares to deploy to the Shah Wali Kot Offensive. Picture: Department of Defence

Mr McClintock will spend days outlining the allegations that Nine defamed the celebrated veteran by alleging he was a war criminal and punched a woman in the face.

According to the soldier’s legal claim, Nine falsely alleged Mr Roberts-Smith “murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him”.

“The applicant, having committed murder by machine gunning a man in Afghanistan with a prosthetic leg, is so callous and inhuman that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel,” the claim reads.

Mr Roberts-Smith has remained largely silent over the past two years as legal letters from both sides dredged up files from the defence force, his ex-wife and even the Afghans who claim they watched him commit war crimes.

But the soldier, who denies all wrongdoing, will finally be heard when he becomes the first witness called in the case later this week.

Nine will argue a defence of truth and contextual truth, saying Mr Roberts-Smith “broke the moral and legal rules of military engagement”, is a bully and a hypocrite who is “not deserving of the good reputation he enjoyed publicly”.

Ben Roberts-Smith at the Australian War Memorial in Canberra. Picture: Ray Strange

In some ways it will force the court to conduct a type of war crimes trial in order to decide the truth of the allegations.

In order to do that it will turn its eyes on the elite military unit under whose banner Mr Roberts-Smith served – the Special Air Service.

One mission in particular is central.

In late August 2012, Afghan Army Sergeant Hekmatullah opened fire at a patrol base killing three Australian soldiers and injuring two others.

The SAS set out to find him and, on September 11, closed in on the village of Darwan.

Nine claimed Mr Roberts-Smith crossed the Helmand River pursuing an unarmed Afghan, who had tried to flee when he saw the SAS approach.

Mr Roberts-Smith allegedly shot the man at such close range that brains splattered into his mouth.

Nine formally withdrew their claim last week that it was an “unlawful murder” but maintained the “factual background” would still be advanced in their case.

Nine further allege that, while waiting for extraction helicopters, Mr Roberts-Smith placed handcuffed shepherd Ali Jan on his knees on a small cliff.

Nine’s court documents say Mr Roberts-Smith kicked the shepherd off the cliff and into a dry creek bed below with such force it knocked his teeth out.

The soldiers allegedly went to inspect the shepherd, who was still alive, before Mr Roberts-Smith allegedly ordered another soldier to execute him.

SAS corporal Ben Roberts-Smith immediately after the action that won him the Victoria Cross in Afghanistan.

The Inspector-General of the Australian Defence Force began investigating allegations of war crimes by the SAS in late 2016 and concluded there was credible information of 39 unlawful killings.

Soldiers who gave evidence to the IGADF fought to keep their testimony out of the defamation trial.

Much of the IGADF’s findings will remain suppressed but not everything has escaped Nine’s subpoenas.

Just days before the trial began, one soldier, Person 35, lost a bid to keep his disciplinary records connected to the IGADF inquiry out of court.

Person 35’s alleged role in Afghanistan remains unclear. All that is known is Nine claimed he was “intimately involved in other crimes” in their reports on Mr Roberts-Smith.

He told the court if the material emerged it could “harm his right to a fair trial in the future” and he would “vigorously defend” himself if he was ever charged for what the IGADF has in its files.

Hundreds of photographs appear to show Mr Roberts-Smith with other soldiers who are drinking from a prosthetic leg taken from the body of a slain Taliban fighter.

The court has heard Mr Roberts-Smith’s lawyers blame his former wife, Emma Roberts, for releasing confronting photographs to Nine’s journalists.

Ben Roberts-Smith and his now ex-wife Emma Roberts. Picture: Lauren Black

On Friday it was revealed Mr Roberts-Smith had launched legal action against Ms Roberts, claiming she may have also released confidential emails to Nine and deleted others.

The emails, between Mr Roberts-Smith, his lawyers and the IGADF, could have “contaminated” the trial, his legal team warned.

Ms Roberts was expected to give evidence for her former husband but has since become one of Nine’s star witnesses.

She is expected to tell the court Mr Roberts-Smith became erratic and drank every night after the IGADF began the investigation.

“She states that the applicant also became extremely paranoid and obsessive from mid-2017 when journalists started contacting him about allegations of war crimes,” a court document reads.

Ms Roberts is expected to detail the decline of their marriage and an affair Mr Roberts-Smith allegedly had with another woman.

Emma and Ben Roberts-Smith before their separation. Picture: AAP/Steve Pohlner

Corporal Benjamin Roberts-Smith is awarded the Victoria Cross by Governor-General Quentin Bryce in Perth in 2011. Picture: AAP Image/Australian Department of Defence

Mr Roberts-Smith denies Nine’s accusation he punched his mistress in the face while at a hotel in Canberra.

Court documents say Ms Roberts will claim her former husband asked her to lie and say they were separated during the affair.

Nine’s lawyers told Justice Besanko Mr Roberts-Smith wrote a letter to his ex wife “threatening” she would be sued if she breached a gag order.

Mr McClintock was unable to assure the court Mr Roberts-Smith would not launch legal action against Ms Roberts if she breached the order.

“I’m going to have to put to her that she’s a liar; there are children involved in this case,” he said in April.

“I wonder if (Nine) should rethink what they’re doing. Sometimes you can pay too high a price to air a family’s dirty linen.”

Mr and Mrs Roberts-Smith said on Sunday the published allegations had been gravely distressing for the whole family.

“The allegations have not only destroyed Ben’s life, but have affected us every day for the last several years,” they said in a statement.

“We never expected that our son would be unfairly attacked in this manner after he served his country in Afghanistan with distinction and risked his life.

“We are very proud of him for the father and son that he is.”