SAS Ben Roberts-Smith seeks largest damages ever for war crime allegations

Ben Roberts-Smith’s lawyer has denied the Victoria Cross recipient made a disturbing comment to another soldier, as alleged by Nine newspapers.

Elite soldier Ben Roberts-Smith has killed in the heat of battle but is not an “ostentatious psychopath” from the likes of Apocalypse Now who carried out war crimes in Afghanistan, his lawyers say.

The first day of the defamation case has heard it is a story of courage and devotion to duty against “corrosive” attacks by those who forget soldiers must kill in battle.

Mr Roberts-Smith arrived alone at Sydney’s Federal Court on Monday morning and faced a barrage of news cameras.

His only response was to thank a lone, elderly supporter who wished the Victoria Cross recipient “good luck” in the upcoming two-month trial.

Ben Roberts-Smith’s reputation has been ‘destroyed by jealous people’, a court has been told. Picture: NCA NewsWire / Dylan Coker

Mr Roberts-Smith’s barrister, Bruce McClintock SC, told the court it was a case about “courage, devotion to duty, self sacrifice” versus “corrosive jealousy, cowardice and lies” led by “bitter people”.

“This is a case about how a man with a deservedly high reputation of courage, skill and decency in how he carried out his military duties had his reputation destroyed by a campaign of jealous people,” he told Justice Anthony Besanko.

Mr McClintock said Australia prided itself on its military and came together each Anzac Day to pay tribute, but many were unwilling to confront the reality that war was incredibly violent.

The soldiers Australia celebrated, he said, were those who could and must kill enemies.

“(A good soldier) is someone who can perform in battle, someone who can kill the enemy before the enemy kills him or those with him … war is violent and regretfully in closed court your honour will see how very violent it is,” he said.

“The people reporting on matters involving (Mr Roberts-Smith) have forgotten that in their rush to tear him down.”

The parents of Ben Roberts-Smith, Len and Sue Roberts-Smith depart the Federal Court of Australia. Picture: NCA NewsWire / Dylan Coker

The barrister spent the first day of his opening going through allegations against Mr Roberts-Smith, listed in Nine’s court documents, and denouncing each one.

They include allegations Mr Roberts-Smith bullied junior SAS troops, executed two teenage Afghans on separate missions and – most notoriously – kicked an unarmed man off a cliff before having him executed.

One allegation, which Mr Roberts-Smith denies, is that he told another soldier he shot an adolescent Afghan in the head and it was “the most beautiful thing” he’d seen.

“It’s like Robert Duvall in Apocalypse Now as Colonel Kilgore on ice,” Mr McClintock said.

“It’s something that would be said by an ostentatious psychopath.”

The barrister said Mr Roberts-Smith was absolutely not that.

Nine also claimed Mr Roberts-Smith was at the end of a mission in the town of Darwan when he kicked the handcuffed shepherd off a small cliff and ordered another soldier to execute the injured man.

Mr McClintock said the alleged execution of Ali Jan Bakir had been the “centrepiece” of Nine’s sprawling allegations against his client and it was entirely false.

“The allegation is ludicrous that my client killed an unarmed man outside, in full view, it did not happen,” Mr McClintock said.

Mr McClintock said Mr Roberts-Smith and another SAS soldier had shot a spotter in a cornfield on the mission – but there were no reliable witnesses for the allegation he had ever killed Ali Jan as Nine had put it.

Sydney Morning Herald editor Lisa Davies and Nine's Executive Editor of Australian Metro Publishing James Chessell leave Federal Court. Picture: NCA NewsWire / Dylan Coker

The court has previously heard that Nine withdrew an allegation that, on the same mission, Mr Roberts-Smith had swum across the Helmand River and unlawfully killed an unarmed Afghan male.

Nine withdrew the allegation it was unlawful just one month before the trial without an apology, Mr McClintock said.

“(This) false allegation of murder, with no basis, justifies the largest award of aggravated damages ever in this country,” he said.

Mr McClintock said he’d seek further damages because Nine published an allegation Mr Roberts-Smith had punched his mistress in the face after a function in Canberra with the Prime Minister.

He told the court the woman, who cannot be named, was so drunk she’d fallen down the stairs.

Mr Roberts-Smith, through his legal team, denies he punched the woman after they returned to their hotel because her behaviour had threatened to expose their tryst.

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

Mr McClintock said his client had been separated from his wife when they were together.

He also said the woman had showed up at Mr Roberts-Smith’s family home and told the soldier’s wife she had sustained the injury falling down the stairs.

“This allegation of domestic violence is false. It has caused my client terrible damage and it’s a different sort of damage than that caused by allegation he committed war crimes and murder in Afghanistan,” he said.

The barrister detailed how Mr Roberts-Smith won his Victoria Cross by storming two machine gun nests and killing many Taliban “insurgents”.

The barrister said Mr Roberts-Smith’s kill count was “very high” with one of Nine’s journalists claiming 65 Taliban were killed by Australian soldiers in that mission.

He was a soldier who ‘deservedly had a high reputation of courage, skill and decency’. Picture: Ray Strange

The court heard Mr Roberts-Smith found himself on the receiving end of “puerile” behaviour from his fellow soldiers after he was recognised for his bravery and awarded the Victoria Cross.

A notice board in the SAS base, Mr McClintock said, had “BRS is after another medal” scrawled on it after Mr Roberts-Smith returned from a mission.

The barrister said Mr Roberts-Smith holds his fellow veterans in high regard, but he was subjected to “tall poppy syndrome” as his reputation increased.

Nine have claimed one witness, known only as Person 1, was bullied by Mr Roberts-Smith.

Nine’s court documents claim Mr Roberts-Smith and the late Sergeant Matt Locke shot and killed a teenage boy.

Mr McClintock said he was a “fighting age male” and a “spotter” for the enemy in the Chora Pass.

Nine claims in the court documents the gunshots caught the Taliban’s attention and Person 1’s weapon failed to fire in the ensuing battle because it hadn’t been properly loaded.

The barrister called Person 1 “a failure of a soldier” who made errors on the battlefield.

Mr McClintock said Person 1 woke up in the middle of the night, while in enemy territory, having a night terror.

Person 1 pointed his gun at Mr Roberts-Smith and screamed “I’m a friendly!”, Mr McClintock said, before another soldier stepped in front of the gun and woke Person 1 up.

Another soldier, Person 10, also claimed he was bullied by Mr Roberts-Smith after one SAS patrol fired on the other by mistake.

Person 10, the court heard, fired bursts of his machine gun but would not answer when Mr Roberts-Smith asked what he was shooting at.

Mr Roberts-Smith, his lawyers say, saw Person 10 had been shooting toward a woman and child.

Ben Roberts-Smith is seeking the largest damages ever, the court heard. Picture: Department of Defence

Back at base, Mr Roberts-Smith is expected to tell the court, he confronted Person 10 and asked why he’d shot at the unarmed civilians.

When Person 10 “giggled” in response Mr Roberts-Smith punched him in the face, Mr McClintock said.

“He shouldn’t have done this but he was shocked by Person 10’s intention and the lack of understanding of the gravity of his actions,” he said.

“The potential impact of killing an innocent woman and child, not just on the SAS and our country generally, but on Person 10 himself would have been a disaster.”

The trial will run for two months.