‘Not an honest and reliable witness’: Judge’s scathing assessment of Roberts-Smith

Disgraced former soldier Ben Roberts-Smith gave false evidence, arranged “unusual” legal fee payments for supportive witnesses and may have perverted the course of justice by threatening a former comrade, the judge who dismissed his multimillion-dollar defamation lawsuit said.

In the full reasons for the judgment, released on Monday, Federal Court judge Anthony Besanko said the former Special Air Service corporal was “not an honest and reliable witness in ... many areas”. He endorsed the credibility and honesty of witnesses who detailed Roberts-Smith’s wrongdoing.

Besanko said anonymous threats Roberts-Smith made in writing in 2018 to a solider dubbed Person 18 “may constitute a criminal offence of attempting to pervert the course of justice ... or using a postal or similar service to menace, harass or cause offence”.

In a landmark decision, a summary of which was released last week, Besanko found that The Age, The Sydney Morning Herald and The Canberra Times had proven Roberts-Smith was a war criminal involved in the unlawful execution of four prisoners during deployments in Afghanistan between 2009 and 2012. The judge also found the Victoria Cross recipient had bullied a fellow soldier.

The release of the full decision was delayed until Monday after the Commonwealth asked for time to review the judgment to avoid any inadvertent disclosure of national security information.

Besanko did not find the news outlets had proven the former soldier committed an act of domestic violence against a lover, but he found that in light of other proven allegations, Roberts-Smith’s reputation had not suffered additional damage and that part of his case should be dismissed. He also found that Roberts-Smith’s behaviour towards the woman, known as Person 17, was at times “intimidatory, threatening and controlling”.

Journalists Nick McKenzie and Chris Masters address the media last Thursday, after Ben Roberts-Smith lost his defamation case.Credit: James Brickwood

Besanko’s full judgment said the “combined effect” of evidence of current and former SAS soldiers who implicated Roberts-Smith in the execution of two Afghan prisoners at a compound dubbed Whiskey 108 on Easter Sunday 2009 was “powerful”.

There was “no evidence of a plausible motive to lie or collusion” between the witnesses, Besanko said, and they “were independent, had no interest in the result and were aware of the significance of giving evidence. Furthermore, they were in a position to observe the events about which they gave evidence.”

On the other hand, he said, Roberts-Smith had motives to lie including potential damages, the risk to his reputation and the increased prospect of prosecution.

Besanko said Roberts-Smith arranged, through a private eye, to have threatening letters sent in 2018 to a serving soldier dubbed Person 18, who would later give evidence for the newspapers.

“Clearly this conclusion reflects adversely on the credit of the applicant [Roberts-Smith],” he said.

The judge found Roberts-Smith came to an unusual arrangement under which he was responsible for paying the more than $250,000 in legal fees of three of his own SAS witnesses, Persons 5, 11 and 35, both in connection with the defamation proceedings and an inquiry by the Inspector-General of the Defence Force.

“I do not consider that any of them were completely frank and forthcoming about their knowledge concerning the payment of their legal fees and that is a matter that affects their credit,” Besanko said.

“I find that [Roberts-Smith] ... made the arrangements because he considered that these witnesses, among others, support his version of events. He was and is no doubt alive to the fact that ... the witnesses will feel less inclined to change their mind and refuse to co-operate or to change an account previously given in circumstances in which the applicant has arranged for the payment of their legal fees.”

Roberts-Smith was not in Sydney to hear the judgment summary delivered on Thursday. His barrister, Arthur Moses, SC, asked the court to extend the usual 28-day period for filing an appeal to 42 days.

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

Roberts-Smith will be ordered to pay the newspapers’ costs as the unsuccessful party to the litigation. However, the media outlets have raised the prospect of seeking a third-party costs order against Roberts-Smith’s former employer, Seven West Media chairman Kerry Stokes, who bankrolled the lawsuit using private funds.

Nicholas Owens, SC, acting for the news outlets, told the court on Thursday: “We do anticipate making an application for indemnity costs, at least against the applicant [Roberts-Smith], and also a third-party costs order, possibly on an indemnity basis as well.”

Indemnity costs cover a higher proportion of a successful party’s legal bill than a standard costs order.

Roberts-Smith had alleged the newspapers accused him of being a war criminal who was complicit in the unlawful execution of three unarmed Afghan prisoners over two days.

Besanko found the newspapers had proved to the civil standard – the balance of probabilities – that those claims were substantially true. In a criminal trial, the standard of proof is beyond reasonable doubt.

Killings proved

The newspapers established that Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in Darwan on September 11, 2012, before procuring a soldier under his command, dubbed Person 11, to shoot the villager.

Besanko said in his full judgment that Roberts-Smith “falsely reported that Ali Jan was a [Taliban] spotter who had been engaged” in combat in a cornfield, but he had “murdered Ali Jan”.

Roberts-Smith had “aided, abetted, counselled or procured Person 11 in the murder of Ali Jan”, the judge said.

The news outlets also established that 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.

Besanko found that 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.

The judge also found the news outlets had proven a fourth murder, which did not appear in the news reports but was part of an extensive truth defence. This killing related 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 at Chinartu.

Besanko found that two other alleged murders, which did not form part of the news stories but appeared in the newspapers’ defence, were not established.

Bullying proven

The judge also found the newspapers had established to the civil standard of proof that Roberts-Smith engaged in a campaign of bullying against a fellow soldier, dubbed Person 1, including making a death threat against him.

Person 1 gave evidence that 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”.

“The context in which that statement was made leads me to conclude that this was a death threat,” Besanko said.

“I firmly reject any suggestion that it was the applicant advising Person 1 that he needed to improve his performance as a soldier otherwise he might be shot by the Taliban.”

In making his findings, the judge made clear that “there is no doubt that a court is not bound to accept the case of one or other of the parties” and “it may reject the case of both parties”.

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. Besanko found Roberts-Smith had lied about being separated from his wife at the time and said it “reflects adversely on his credit”.

Person 17, whose identity was suppressed by the court, alleged in court 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 said he did not accept Roberts-Smith’s evidence about the alleged incident, but he was “not satisfied that Person 17’s evidence is sufficiently reliable to form the basis of a finding that the assault occurred”.

The parties return to court on June 29, when the issue of costs will be discussed further.

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