Ben Roberts-Smith verdict live updates: Defamation decision against Sydney Morning Herald, The Age

Ben Roberts-Smith was involved in killing unarmed prisoners while serving with the elite Special Air Service in Afghanistan, a judge has accepted. 

The Victoria Cross recipient has lost his defamation action against Nine newspapers in a judgment that ends what was dubbed the ‘trial of the century’.

Federal Court Justice Anthony Besanko delivered his findings in Sydney on Thursday afternoon after a marathon trial which ran over 110 days of hearing, costing an estimated $25million. 

The judge dismissed Mr Roberts-Smith’s action after finding the newspapers had proven some of the war crimes allegations they had made against him. 

He found the publisher had proven the ‘susbstantial truth’ of the most serious claims against Mr Roberts-Smith in relation to two operations in which three unarmed Afghans were killed. 

While he did not accept the newspapers had established every murder allegation, they had shown enough such killings had taken place to dismiss the lawsuit. 

Judge Besanko also found the publisher had produced enough evidence of ‘contextual truth’ to substantiate claims of domestic violence against Mr Roberts-Smith. 

After the decision, reporter Nick McKenzie, who drove the newspapers’ coverage of Mr Roberts-Smith’s conduct in Afghanistan tweeted: ‘Justice’ 

Justice Besanko’s rulings bring to an end the longest and most expensive defamation trial in Australian history. 

Mr Roberts-Smith, who was not in court to hear the verdict, has been staying at a $500-a-night resort in Bali and was photographed lying poolside on Wednesday.

The 44-year-old launched a defamation action against three newspapers after he was branded a murderer, bully and perpetrator of domestic violence.

Mr Roberts-Smith claimed The Age, The Sydney Morning Herald and Canberra Times made 14 defamatory claims including that he was responsible for six unlawful killings in Afghanistan between 2009 and late 2012. 

He was also accused of bullying other soldiers in the Special Air Service Regiment and of assaulting a mistress in 2018 at a Canberra hotel. 

At the time the stories were published the three newspapers were owned by Fairfax Media. The Herald and Age are now owned by Nine Entertainment while the Canberra Times is part of the separate Australian Community Media. 

Named in the action were reporters Nick McKenzie, Chris Masters from the Herald and Age and David Wroe from the Canberra Times.  

The claims against Mr Roberts-Smith were made in a series of articles published in 2018 and initially identified him only by the pseudonym Leonidas, the famed Spartan king.

When Mr Roberts-Smith sued, Nine stood its ground and alleged he had murdered or was complicit in the murder of six Afghan prisoners. During the court case the publisher accepted it could not prove one of the alleged murders.

Nine called witnesses who said Mr Roberts-Smith was an arrogant, bullying elitist with a warped warrior mentality that made him overstep the bounds of the laws of armed conflict.

Mr Roberts-Smith denied every allegation against him, maintaining he had only ever acted with honour and in the best traditions of the Australian Army. 

Mr Roberts-Smiths’ legal team was led by Bruce McClintock SC with Arthur Moses SC. The publishers were represented by Nicholas Owens SC.   

The trial commenced in June 2021 and was meant to last about 10 weeks but was beset by delays due to Covid-19, in particular border closures. Final submissions were heard in July last year.

In his closing address, Mr Moses had said Nine had no proof to support its allegations and no basis upon which to accuse his client of being a war criminal.

‘[Nine] published allegations and stories as fact that condemned Mr Roberts-Smith as being guilty of the most heinous acts of criminality that could be made against a member of the Australian Defence Force, and indeed any citizen,’ he said.

‘It depends upon recollections of evens that occurred during missions more than ten years ago…

‘Recollections which are contradicted either by their own witnesses, our witnesses and Defence Force documents’.

Among those to give evidence for both sides were former and serving SAS members who appeared under pseudonyms and gave conflicting versions of events in Afghanistan.

Mr Roberts-Smith’s ex-wife, Emma Roberts, testified against him, as did ‘Person 17’, the woman who claimed he assaulted her in a Canberra hotel while they were having an affair.

Among Ms Roberts’ claims was that her former husband had hidden files on a USB stick he buried in a child’s lunchbox in the backyard of their marital home.

In the background was the reputation of the Australian Defence Force, particularly its Special Forces operators, and the threat of criminal charges against Afghanistan veterans. 

A four-year inquiry by the Inspector-General of the Australian Defence resulted in damning report published n November 2020.

Justice Paul Brereton evidence of 39 unlawful killings of civilians or prisoners by 25 Australian Special Forces soldiers serving in Afghanistan from 2009 to 2016.

Two engagements in Afghanistan attracted the most attention during the Roberts=-Smith trial. There was the storming of a compound dubbed Whiskey 108 at Kakarak in April 2009 and the treatment of a prisoner at Darwan in September 2012.

Read Related Also: Josh Peck Says He ‘Aged Out’ of Nickelodeon as a Former Child Star

Nine alleged Mr Roberts-Smith murdered a Afghan prisoner with a prosthetic leg during the battle at Kakarak. He said he lawfully shot dead an armed insurgent.

Mr Roberts-Smith also denied ordering a junior SAS member to kill a second Afghan in a ‘blooding’ custom during the same operation. Instead, he said an SAS trooper shot an insurgent armed with a machinegun.

It was not disputed that another soldier took the dead Afghan’s leg back to the SAS base at Tarin Kowt where it was used as a drinking vessel. 

The operation at Darwan began with a search for an Afghan soldier called Hekmatullah who had shot dead three Australians at their base 13 days earlier. 

Nine alleged Mr Roberts-Smith, a 202cm tall corporal, kicked a hand-cuffed villager, Ali Jan, off a cliff and ordered he be shot before his body was dragged into a cornfield.

Mr Roberts-Smith testified that Ali Jan was not innocent, but rather a ‘spotter’, or forward scout for the Taliban, and was carrying a radio. He said there was no cliff, no kick, and another SAS member lawfully killed him.

Nine alleged Mr Roberts-Smith also shot a young Afghan prisoner with a pistol after he was captured at Fasil in November 2012 and described the killing as ‘the most beautiful thing I’ve ever seen’. 

The publisher further alleged Mr Roberts-Smith ordered an Afghan soldier to execute another prisoner in October the same year. Nine accepted it could not prove Mr Roberts-Smith directed a comrade to kill a prisoner in a separate 2012 incident.   

Between the Kakarak and Darwan engagements, Mr Roberts-Smith’s actions in a battle at Tizak in June 2010 earned him the Victoria Cross. 

Mr McClintock said that award had led to ‘corrosive jealousy’ among some of Mr Roberts-Smith’s comrades and led to them telling lies about his battlefield conduct. 

‘This is a case about courage, devotion to duty, self-sacrifice and perhaps most important of all, surpassing skill in soldiering,’ Mr McClintock said at the start of the trial. 

‘On the other hand, Your Honour, it’s a case about dishonest journalism, corrosive jealousy, cowardice and lies. 

‘It’s also about how a man with a deservedly high reputation for courage, skill and decency… had that reputation destroyed by bitter people jealous of his courage and success as a solider, particularly his Victoria Cross, aided by credulous journalists.’ 

Mr Roberts-Smith said being awarded the Victoria Cross had been an honour but was also a cross he had to bear for the rest of his life. 

‘Because for all of the good that is has brought me and has enabled me to do… it has also brought me a lot of misfortune and pain,’ he told the court.

‘As soon as you become a tall poppy that gives people the opportunity to belittle you and drag you down and undermine you, and use that award against you out of pure spite.’

While Mr Roberts-Smith denied each and every one of the war crime allegations levelled against him, he seemed even more perturbed by the claims of domestic violence.  

Person 17, with whom he had an affair outside his marriage to wife Emma, gave evidence Mr Roberts-Smith had assaulted her in March 2018 after a reception at Parliament House. 

She had been drunk at the event and fallen down a flight of stairs before returning to a hotel room where she claimed Mr Roberts-Smith punched the left side of her face – the same spot she was injured in the fall. 

Mr Roberts-Smith denied hitting Person 17, saying: ‘I’ve never hit a woman. I never would hit a woman’.

When asked by Mr McClintock how he thought he was viewed by the public, Mr Roberts-Smith referred the ‘deplorable’ claim, rather than the allegations of war crimes. 

‘Now I walk down the street, people will look at me,’ he said. ‘The first thing I think of is that they think I hit a woman.’

Mr Roberts-Smith stood down as general manager of Network Seven in Queensland before the trial commenced.

Seven West Media’s owner, Western Australian billionaire Kerry Stokes, extended a multimillion-dollar line of credit to his high-profile employee to run the action.

Mr Roberts-Smith provided his Victoria Cross and other battlefield decorations including his Medal for Gallantry as security for the loan.

Mr Stokes has said in the event Mr Roberts-Smith could not repay the money he would donate the medal group to the Australian War Memorial.