It’s careful, forensic and devastating, but is the Ben Roberts-Smith judgment appeal-proof?

The full judgment from Justice Anthony Besanko in the Ben Roberts-Smith defamation case is not just damaging for Australia’s most decorated living soldier, it’s devastating.

Besanko has gone painstakingly through every aspect of the evidence of both sides and has come to the clear and succinct conclusion that Roberts-Smith was directly involved in the murders of four unarmed prisoners over three years from 2009 to 2012. He is, in effect, a serial killer.

In addition, the judge found, the former war hero and father of the year lied freely, worked with friendly witnesses to come up with false stories, and liberally issued threats to his former comrades, his own wife and his lover to deter them from contradicting his lies.

Even on the few matters where the judge found that The Age, The Sydney Morning Herald and The Canberra Times did not prove the truth of their allegations, there was no vindication for the stories concocted by Roberts-Smith.

And in some ways these are the most revealing matters. Take for example, the SAS mission to Fasil on November 5, 2012. The newspapers alleged that on this mission, the towering soldier’s last in Afghanistan, he murdered a young man who had been made a prisoner.

Besanko went through the evidence point by point. On that day, a number of Roberts-Smith’s troop members intercepted a Toyota Hilux carrying four Afghan males. One was a boy, really, aged somewhere between 15 and 18 and described as having a “baby face”.

Defamation cases at their worst have been used by some judges to sneer at the practices of the media while restricting their access to evidence.

However, as a fighting-aged male, he was searched and detained along with his fellow travellers. The soldier who conducted the search was a medic known in court by the moniker Person 16. The Afghan boy, according to Person 16, was “shaking like a leaf”. Person 16 handed him over as a “person under control” to Roberts-Smith’s patrol for questioning, along with the other men in the Toyota. So far, so normal.

A day or two after the mission, Person 16 asked Roberts-Smith what had happened to the quivering boy. Roberts-Smith’s reply, according to Person 16 was brutal: “I shot that c--- in the head ... I pulled out my 9mm and shot him in the head. It was the most beautiful thing I’ve ever seen.”

Person 16 participated in more than 90 missions in the 2012 rotation. He told the court he was shocked by Roberts-Smith’s words, but did not report the conversation because of the code of silence in the regiment, and because he feared retribution from the alpha males in the troop – Roberts-Smith and his mates.

He has had nightmares since.

A photo of Ben Roberts-Smith displaying a Crusader’s cross, which was edited by Defence to remove the symbol.

In Roberts-Smith’s version of the day, he did not shoot the prisoner. In fact, he told the court, on that day, no prisoners had been handed over to him.

Of the two accounts, the judge found Roberts-Smith’s the less convincing. “Person 16 was an honest and reliable witness,” who was “entirely straightforward and he had no motive to lie,” Besanko wrote. Of Roberts-Smith’s story? “That is false.”

Despite all that, the incident at Fasil was one of the alleged murders the judge found the newspapers had not substantiated. Why? Because there was no eyewitness. The newspapers submitted a photograph of a dead boy, but Besanko was not satisfied that it was the boy being described because photographs are notoriously difficult to identify with certainty.

In mission after mission, allegation after allegation, the judge forensically weighed what he’d been told and made his decision. By and large, he preferred the evidence of witnesses called by the newspapers. Many of those men were not sources for the original stories, but had been subpoenaed by the court. They were speaking often against their will, reluctantly breaking the SAS code in favour of the truth.

Special forces in Afghanistan.

Roberts-Smith’s witnesses, on the other hand, were mostly his mates. And the judge eviscerated them.

On the two cases at the centre of the original reporting – the double murder in a compound called Whisky 108, and the murder of Ali Jan after kicking him down a cliff at Darwan – Besanko found Roberts-Smith’s witnesses were not only friendly to him, but were colluding in a series of fabrications.

On Whisky 108, the judgment related how Roberts-Smith sent one of his witnesses, Person 29, a PowerPoint presentation including pictures of the compound, which he had marked up to falsify evidence that suggested that other eyewitnesses to the murders must be lying.

Roberts-Smith’s then wife, Emma Roberts, gave evidence that Person 29 had stayed at their home in July 2019 and the two men sequestered themselves in the office looking at documents on Roberts-Smith’s laptop.

SAS soldier Ben Roberts-Smith (centre) carousing with US soldiers and a prosthetic leg taken from an Afghan man whom he murdered at Whiskey 108.

“I am satisfied that there were discussions between the applicant, Person 5 and Person 29 (and possibly others) about what occurred... Their evidence is contaminated to that extent,” the judge found.

At the trial, Roberts-Smith and two witnesses stuck to their lie despite significant variations and alterations to their evidence which further reduced their credibility.

Likewise on evidence about the killing at Darwan, the judge found Roberts-Smith colluded regularly with another mate, Person 11, in coming up with what the judge found was an implausible story. “No cliff, no kick,” Roberts-Smith said of the incident in evidence.

“The irresistible inference is that he has discussed his evidence at length with Person 11,” the judge wrote, having enumerated all the times they met and conferred before and after that soldier gave his evidence before the war crimes inquiry.

“I am satisfied that the applicant and Persons 5, 11, 29 and 35 discussed their respective recollections of the missions in which they were involved, including the missions to Whisky 108, Darwan, Chinartu and Fasil and that they discussed their recollections in detail,” Besanko found.

The unreliability of Roberts-Smith’s evidence was only compounded by the “unusual and difficult to penetrate” decision by Channel Seven to pay the legal fees of Persons 5, 11 and 35, then transfer them to the loan account of Roberts-Smith himself, and then to be evasive about those payments.

Where Besanko does make a call, it is firmly underpinned by the evidence.

The obvious legal point is that this will make it difficult to challenge in an appeal.

Besanko would have known it had to be tight because, with such high stakes and a well-funded litigant like Roberts-Smith, there was a good chance the higher courts would be poring over his reasoning.

After tipping tens of millions of dollars and a portion of their own credibility into this case, Seven’s owner Kerry Stokes and commercial director Bruce McWilliam might still find that gambling a million or so more on an appeal is a bet they’re willing to make.

But this careful judgment is also a blow to those critics who argue, with decreasing credibility, that this is “just” a civil case, proven on the balance of probabilities not to the criminal standard of beyond reasonable doubt, and therefore Roberts-Smith can’t really be considered a murderer.

Those people, including some writing in the News Corp papers who have backed him to the hilt, should spend some time reading this judgment.

Defamation cases at their worst have been used by some judges to forensically examine and sneer at the practices of the media while restricting their access to the evidence they need to prove their cases.

This judgment shows Besanko was genuinely interested in finding out what happened in Afghanistan on the original six allegations of murder, and much more besides – from allegations of domestic violence to the use by Roberts-Smith of rival media to try to discredit the story and threaten witnesses to war crimes.

Besanko allowed lawyers for the newspapers to subpoena witnesses and obtain documents that existed, even if they had not been in possession of the journalists at the time of writing.

The pursuit of the truth demanded nothing less. And the crucial national interest represented in that truth demands a more significant response from politicians, from prosecutors, and from the military than it has so far received.

The journalists have done their jobs. Now it’s up to them.

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