Massive loss for Ben Roberts-Smith as judge throws out media case

Ben Roberts-Smith loses defamation case

Victoria Cross recipient Ben Roberts-Smith committed a slew of war crimes while in Afghanistan including the murder of unarmed prisoners, a Federal Court judge has found.

Mr Roberts-Smith – who is Australia’s most decorated living ex-soldier – suffered the massive court loss on Thursday afternoon.

It brought to an end the almost five-year legal battle between the former-SAS corporal and three media outlets.

Justice Anthony Besanko found that a number of 2018 reports published by The Age, The Sydney Morning Herald and The Canberra Times were substantially true about war crimes committed by Mr Roberts-Smith.

These claims included that Mr Roberts-Smith executed a prisoner with a prosthetic leg by firing a machine gun into his back at a compound called Whiskey 108 in 2009 and that he kicked an unarmed, handcuffed farmer named Ali Jan off a cliff into a river bed in September 2012 at Darwan.

He then took the fake leg back to Australia where he encouraged soldiers to use it as a novelty drinking vessel.

The ex-soldier, referred to as Leonidas in some of the articles, also kicked an unarmed, handcuffed farmer named Ali Jan off a cliff into a river bed in September 2012 at Darwan and ordered soldiers under his command to execute him.

On another occasion, Mr Roberts-Smith pressured a “newly deployed and inexperienced” soldier to kill an elderly, unarmed Afghan to “blood the rookie”.

Reports he bullied soldiers and assaulted Afghan civilians were also true.

Mr Roberts-Smith “broke the moral and legal rules of military engagement” and disgraced his country through his conduct, Justice Besanko found.

Reports of domestic violence towards Mr Roberts-Smith’s mistress were found to have been defamatory.

“I am not satisfied that [the woman’s] evidence is sufficiently reliable to form the basis of a finding that the assault occurred,” the judge said.

A further claim that Mr Roberts-Smith threatened to report another soldier to the International Criminal Court for firing at civilians was also defamatory.

However, Justice Besanko agreed with the media companies’ contextual truth defences, saying harm from these defamatory reports would not have further damaged the ex-soldier’s already battered reputation.

The Victoria Cross recipient, who was seen at a resort in Bali on Wednesday, was not present at Thursday’s hearing.

The decision, in which the judge ordered the three cases to be dismissed, was read out to a packed courtroom and watched by thousands of people online.

Barrister Nicholas Owens SC, representing the three media companies, said his clients would seek their costs of defending the lawsuits.

This could include an application for indemnity costs, which are typically only granted in certain circumstances including where someone has launched a lawsuit that has no prospects of success.

Estimates put the legal bill for the case at more than $25 million for both the former soldier and media firms.

In a statement on Thursday, the Nine Network (which now owns The Age and the SMH) said it welcomed the findings.

“The finding by Justice Anthony Besanko today that Roberts-Smith participated in the execution of Afghans confirms our reports that the Victoria Cross recipient breached the Geneva Convention, and is a critical step towards justice for the families of the murder victims,” it said.

“The judgment is a vindication for journalists Nick McKenzie and Chris Masters, who began reporting this difficult and complicated story more than seven years ago.

“It is a vindication for the many people in our newsrooms and our organisation who supported this important public interest journalism.

“Most importantly, it’s a vindication for the brave soldiers of the Australian Defence Force’s SAS who served their country with distinction and then had the courage to speak the truth about what happened in Afghanistan.”

Nine said the stories at the centre of the case would have a lasting impact on the Australian Defence Force, and how Australian soldiers conducted themselves overseas.

“Today is obviously a pivotal moment in this story and we are very pleased with the result – but it’s critical to acknowledge that it goes on beyond this judgement. We will continue to hold people involved in war crimes to account,” the statement said.

“The responsibility for these atrocities does not stop with Ben Roberts-Smith.”

Outside court, McKenzie said Mr Roberts-Smith was a “bully” and a “war criminal”.

“Today is a day of justice for the brave members of the SAS, who stood up and told the truth of who Ben Roberts-Smith is, a war criminal, bully and liar,” he said.

Neither Mr Roberts-Smith nor his representatives have yet commented on the decision.

He has been given 42 days to appeal the decision.

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-with AAP

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