Ben Roberts-Smith VC, Australia’s most decorated living soldier, has lost a defamation case in which he was accused of multiple murders of unarmed civilians in Afghanistan, a federal court judge has found.
Justice Anthony Besanko found that, on the balance of probabilities, Roberts-Smith kicked a handcuffed prisoner off a cliff in Darwan in 2012, before ordering a subordinate Australian soldier to shoot the injured man dead.
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And in 2009, Roberts-Smith ordered the execution of an elderly man found hiding in a tunnel in a bombed-out compound, as well as murdering a disabled man with a prosthetic leg during the same mission, using a para minimi machine gun.
The judgment is not a criminal finding of guilt, but a determination on the civil standard of the “balance of probabilities”.
A summary judgment has been published by the federal court. The full reasons will be published on Monday afternoon, after the commonwealth has checked the judgment for national security concerns.
Roberts-Smith has been awarded no damages in the judgment. Lawyers for the newspapers have sought several weeks for applications around costs of the trial.
The civil judgment is likely to cost Roberts-Smith millions of dollars in costs to be awarded to the newspapers. The cost of the trial is estimated to be upwards of $35m.
The former SAS corporal had taken out a loan, believed to be $2m, from his employer, Channel Seven owner Kerry Stokes, to fund his defamation case. He appears now almost certain to lose his Victoria Cross medal as surrendered collateral.
Roberts-Smith, a former SAS corporal, is Australia’s most decorated living soldier, and the recipient of the Victoria Cross for “most conspicuous gallantry” during the battle of Tizak in 2010.
He had enjoyed a stellar public reputation, lionised as the exemplar of Australia’s ultimately unsuccessful mission to bring peace and prosperity to Afghanistan, held up as the modern embodiment of Australia’s the Anzac legend. The most famous soldier of his generation, Roberts-Smith was also named Father of the Year and served as chair of the government’s Australia Day Council.
But in 2018, the Age, the Sydney Morning Herald and the Canberra Times published a series of articles that alleged he engaged in war crimes, including murdering civilians and ordering subordinate soldiers under his command to execute civilians in so-called “blooding” incidents.
Roberts-Smith sued the newspapers, telling the court their stories portrayed him as a criminal “who broke the moral and legal rules of military engagement” and “disgraced” his country and its army.
The newspapers defended their reporting as true.
The trial heard more than 100 days of evidence over more than a year, including extraordinary evidence of executions performed by Australian soldiers, and of a spiteful, factionalised SAS regiment, deeply riven by internecine fighting over decorations and medals and in thrall, on some evidence, to a “warrior culture” steeped in violence.
More to follow ….
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