Former SAS soldier Ben Roberts-Smith committed war crimes

A Federal Court judge has found decorated soldier Ben Roberts-Smith murdered four unarmed prisoners in Afghanistan, in a historic victory for the media outlets at the centre of his multimillion-dollar defamation suit.

In a landmark decision on Thursday, Justice Anthony Besanko found The Age, The Sydney Morning Herald and The Canberra Times had proven Roberts-Smith was a war criminal who unlawfully killed and assaulted unarmed Afghan prisoners. Besanko also found the Victoria Cross recipient had bullied a fellow soldier.

Ben Roberts-Smith outside the Federal Court of Australia earlier in the trial.Credit: Getty Images

He did not find the outlets had proven the former Special Air Service corporal committed an act of domestic violence against a lover, but in light of other proven allegations, Besanko found that allegation did not further harm Roberts-Smith’s reputation and his case should be dismissed.

Roberts-Smith, who was photographed in Bali on the eve of the judgment, did not appear in court in Sydney on Thursday. His barrister, Arthur Moses, SC, foreshadowed that his client may lodge an appeal.

James Chessell, Nine’s managing director of publishing, said the decision was a vindication not only of award-winning investigative journalists Nick McKenzie and Chris Masters but the brave SAS soldiers “who served their country with distinction and then had the courage to speak the truth about what happened in Afghanistan”.

McKenzie described the case as “the toughest fight of our journalistic careers” and said the decision marked “a day of some small justice for the Afghan victims of Ben Roberts-Smith”. He paid tribute to the SAS soldiers who had testified and were vindicated by the result.

Masters said the newspapers made “a great call” in June 2018 to run the stories, and “I think it will go down in the history of the news business as one of the great calls”.

Roberts-Smith took leave from his role as general manager of Seven Queensland during the defamation case and remained on leave on Thursday.

Seven West Media chairman Kerry Stokes, who bankrolled the lawsuit using private funds, said in a statement that “the judgment does not accord with the man I know”.

“I haven’t had a chance to have a discussion with Ben as yet, but I will when he has had a chance to fully absorb the judgment,” Stokes said.

Nine managing director of publishing James Chessell speaks alongside reporters Chris Masters and Nick McKenzie.Credit: James Brickwood

University of Sydney professor David Rolph, an expert in defamation law, said the decision marked “a comprehensive victory for the media outlets” and was “a vindication of the journalism in question”.

“Defamation losses have a chilling effect for the media, particularly for serious investigative journalism,” Rolph said. “This decision should give media outlets some confidence that they can undertake public-interest journalism and prevail.

“Australia’s defamation laws have a reputation for being plaintiff-friendly. This case shows that it is possible, sometimes, for publishers to prevail.”

The war veteran’s defamation trial was launched in 2018 against The Age and The Sydney Morning Herald, owned by Nine, and The Canberra Times, now under separate ownership, and concluded in July last year after 110 days, 41 witnesses and more than $25 million in legal costs.

It is among the largest and most expensive defamation trials ever conducted in Australia and the first to examine in detail allegations of war crimes against members of the SAS.

Besanko ruled the media outlets had successfully proven the truth of the vast bulk of the claims. To date, only a summary of his decision has been released publicly, after the Commonwealth sought to review the full decision to protect national security information.

Besanko found Australia’s most decorated living soldier had broken the moral and legal rules of military engagement and was therefore a criminal, and that he had disgraced his country and the army by his conduct in Afghanistan.

The media outlets alleged during the court case that Roberts-Smith was involved in the murder of five Afghan prisoners, contrary to the rules of engagement that bound the SAS. They called 20 serving and former SAS soldiers to give evidence. A sixth murder allegation was not further explored in the trial after a former soldier was not compelled to give evidence, and it was not proven.

Roberts-Smith denied all wrongdoing. Besanko found four of the five murder allegations had been proven. He also found the newspapers had proven it was substantially true that Roberts-Smith assaulted unarmed Afghan prisoners in 2010 and 2012.

The alleged murders

In a centrepiece allegation in the case, the newspapers alleged Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in Darwan on September 11, 2012, before procuring soldiers under his command to shoot the villager. Besanko found the murder allegation was proven.

In a second key allegation, the newspapers said Roberts-Smith was involved in two murders during an earlier mission on Easter Sunday, 2009, after two Afghan men were discovered in a tunnel in a compound dubbed Whiskey 108. They alleged Roberts-Smith killed one of the men himself and directed a “rookie” soldier, Person 4, to kill the second man as a form of “blooding” or initiation.

Besanko found this allegation was proven.

He also found a fourth murder allegation, which did not appear in the news reports but was part of the newspapers’ defence, had been proven, relating to directions Roberts-Smith gave via an interpreter for an unarmed Afghan man to be shot by a member of the Afghan Partner Force in 2012.

Out of the five alleged murders, Besanko found one had not been proven to be substantially true.

Domestic violence allegation

The court heard Roberts-Smith had ended a turbulent six-month affair with a woman dubbed Person 17 by the time the first of the newspaper articles was published.

Person 17, whose identity was suppressed by the court, gave evidence that Roberts-Smith punched her on the left side of her face and eye following a dinner in Parliament House in Canberra in 2018.

Roberts-Smith vehemently rejected the allegation, and a former army officer at the dinner said he witnessed Person 17 fall down the stairs.

Besanko was not satisfied that Person 17’s evidence was sufficiently reliable to make a finding that the assault had occurred; however, he found the allegation had caused no further harm to Roberts-Smith’s reputation after he had been found to be a war criminal.

Bullying allegation

Roberts-Smith also alleged the newspapers accused him of engaging in “a campaign of bullying against a small and quiet soldier”.

A serving SAS soldier dubbed Person 1 gave evidence for the newspapers and said Roberts-Smith told him in 2006 that “if your performance doesn’t improve on our next patrol, you’re going to get a bullet in the back of the head”.

He told the court he had interpreted the comment as a death threat. Person 1 alleged Roberts-Smith had bullied and undermined him for years, including pushing him in the chest during a later incident in 2010 and telling him to “get out of my way, c---, or I’ll kill you”.

Besanko found the news outlets had established the substantial truth of the bullying allegation. He dismissed Roberts-Smith’s lawsuit.

The fallout

Federal Greens defence spokesman Senator David Shoebridge described the defamation judgment as “an important win for fearless journalism in the public interest”.

“It’s a tragic fact that private media companies, not any part of the federal government, have taken on the public task of telling the truth about Australia’s war record in Afghanistan,” Shoebridge said. “The official silence must now end.”

Shoebridge called for Roberts-Smith’s uniform to be immediately removed from public display at the Australian War Memorial.

Ben Saul, a professor of international law at the University of Sydney, said that, subject to appeal, the War Memorial should also remove its dedicated Roberts-Smith display and Roberts-Smith should be stripped of his Victoria Cross medal.

A recipient has not been stripped of their Victoria Cross, the nation’s highest military honour, since 1908. The War Memorial did not respond to requests for comment.

Australia Defence Association executive director Neil James said the damning defamation judgment against Roberts-Smith would “help clear the air in the public debate” about war crimes in Afghanistan.

“A lot of people have been in denial, promoting the nonsense that because no one has been convicted we can’t say whether war crimes occurred,” James said.

Martin Hamilton-Smith, the national chair of the Australian Special Air Service Association, said: “This was a very bad day for Ben Roberts-Smith and the veterans community. There’s no dressing it up.”

Hamilton-Smith called for the Office of the Special Investigator, which is responsible for prosecutions arising from the Inspector-General of the Australian Defence Force’s Afghanistan inquiry, to announce any further war crimes charges urgently so that the soldiers in question can have their day in court.

To date, one charge unrelated to the Roberts-Smith case has been laid.

“A criminal court might see things completely differently,” he said of the Roberts-Smith defamation judgment. “It’s a whole different process.”

Hamilton-Smith said soldiers accused of wrongdoing, as well as those accusing their former colleagues of wrongdoing, were “victims of a mismanaged war and poor decisions made in Canberra during and after the fighting”.

He said any discussion about medals being stripped from soldiers should only take place after they have been found guilty in court.

Defence Minister Richard Marles and opposition defence spokesman Andrew Hastie declined to comment.

In his March 2022 appearance at the trial, Hastie declared he was no longer proud of Roberts-Smith and said that he pitied him.

“This is terrible for our country, terrible for the SAS, terrible for our national security,” Hastie said at the time.

“No one wants to see this but until we deal with it, we can’t move forward.”

The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.