Australia’s Most Decorated War Hero Loses Defamation Battle in Court

Ben Roberts-Smith departs the Federal Court of Australia in Sydney on June 9, 2021. (Sam Mooy/Getty Images)

Ben Roberts-Smith, Australia’s decorated war hero and Victoria Cross recipient, has lost his high profile defamation case against three Australian newspapers following a Federal Court judgment that found him guilty of war crimes.

Roberts-Smith claimed that The Age, The Sydney Morning Herald and The Canberra Times, published a series of defamatory articles that wrongly accused him of committing war crimes in Afghanistan, for bullying Special Air Services (SAS) soldiers, and for assaulting his mistress.

The June 1 judgment passed by Federal Court Justice Anthony Besanko comes after 110 days of court hearings, 41 witnesses, and more than $25 million in legal fees.

Roberts-Smith was not in court to hear the judgment.

Additionally, Justice Besanko delivered his judgment despite the Commonwealth seeking a delay due national security concerns.

Evidence Stacked Up Against Roberts-Smith

Former SAS soldiers, and three Afghan nationals were among the witnesses that gave evidence in court that was found hold “substantial truth.” However, not all imputations made by the newspapers were found to be true.

Among the findings that held “substantial truth” included the allegation that Roberts-Smith kicked an Afghan detainee off a cliff and ordered his troops to shoot him dead.

Another allegation found to be true was the allegation that Roberts-Smith ordered a “rookie” inexperienced SAS soldier to execute an unarmed Afghan detainee in tunnel.

A second Afghan detainee who had a prosthetic leg was shot dead with a machine gun in the same tunnel. His prosthetic leg was then taken back to Australia and used as a drinking vessel.

Another finding found true was that Roberts-Smith ran a “campaign of bullying” against a “small and quiet soldier,” named Trooper M, that included threats of violence.

However, truth defences were not accepted over allegations Roberts-Smith shot a terrified adolescent in the head before an AK-47 rifle was placed on the deceased body to imply that the adolescent was armed.

Justice Besanko accepted a contextual truth defence to allegations that Roberts-Smith punched his mistress in the temple, which caused her to stagger and fall onto a bed in a Canberra hotel room in March 2018. This defence means that no further harm was done to his reputation.

Award-Winning Investigative Journalist Tweets ‘Justice’

Outside the Federal Court in Sydney following the judgment, award-winning investigative journalist Nick McKenzie, who reported the stories along with Chris Masters, paid tribute to witnesses who testified in court.

Journalist Nick McKenzie talks to the media outside the Federal Court of Australia in Sydney on June 1, 2023. Ben Roberts-Smith, one of Australia's most decorated soldiers, lost a landmark defamation case against major newspapers on June 1 after a bruising trial that saw accusations of murder, domestic violence, witness intimidation and war crimes. (Saeed Khan/AFP via Getty Images)

“Justice,” McKenzie tweeted.

“Today is a day of some small justice for the Afghan victims of Ben Roberts-Smith,” McKenzie said outside court.

“Ali Jan was the man kicked off the cliff. Ali Jan was a father. Ali Jan was a husband … He was kicked off a cliff by Ben Roberts-Smith, and he was murdered with Ben Roberts-Smith’s participation. There’s some small justice for him.”

Journalist Benita Kolovos said in a tweet: “A great win for journalism, you should be so proud.”

‘Absolute National Disgrace’: Retired Special Forces Soldier

Meanwhile, retired special force soldier Heston Russell did not agree with the verdict.

“I think it’s an absolute national disgrace that Ben and his team have had to fight this in a court for defamation, which is beyond the balance of probabilities,” Russell said in a tweet.

“Because media are allowed to make allegations from whistleblowers or whoever else they want without taking them to the authorities, and without them being able to meet the thresholds of evidence for a criminal trial that is beyond reasonable doubt.”

Russell said that the judgment was “not a ruling on war crimes,” which has to be proven beyond reasonable doubt, but rather it was based the 51/49 percent balance of probabilities in a defamation case.

“Today is not a ruling on war crimes, it’s a ruling on defamation,” he said.

“War is a very exposing activity. It is authentic, it is accountable, (where) some people are found to be not to the measure required, (and) some people are found to not get along with those around them.”

Roberts-Smith Says Victoria Cross Award Made Him a ‘Target’

When Roberts-Smith testified in court as the first witness, he told the court his Victoria Cross medal for the 2010 battle of Tizak made him a “tall poppy” within the SAS that made him a target from envious associates.

Roberts-Smith was awarded the Victoria Cross for “conspicuous gallantry” in leading an attack against heavily armed Afghan soldiers.

“It put a target on my back,” he said.

Roberts-Smith’s barristers accused the SAS witnesses of lying and jealousy.

Arthur Moses SC said a “war of words” erupted “in the dark and through the media,” and Masters and McKenzie then based their “sensationalist” publications on rumour, hearsay and contradictory accounts.

However, Nicholas Owens SC, who represented the media outlets, said their witnesses had no motive to lie, with many unwillingly forced to attend court to recount some of their most traumatic experiences.

Owens blamed a “culture of silence” within the SAS that prevented the men from speaking up against the “heinous acts of criminality” for years.

Meanwhile, Roberts-Smith’s barrister, Arthur Moses SC, has asked the court to grant him 42 days extension to lodge an appeal.

Additionally, Nine newspapers are seeking indemnity costs, which would cover most or all of their legal fees incurred with the case.

A directions hearing to hear these matters is scheduled on June 29.