What did Ben Roberts-Smith do? War crimes defamation case explained

Ben Roberts-Smith has been called a war criminal who murdered prisoners while serving with the SAS in Afghanistan after a judge rejected his defamation claim.

But he has not been charged with any crime — much less convicted of one — and can still appeal Judge Anthony Besanko’s findings in Federal Court.

When Judge Besanko dismissed Roberts-Smith’s action against nine newspapers on Thursday, he only provided a five-page summary of his findings.

His full verdict, which will span hundreds of pages and detail Judge Besanko’s reasons for his decisions, will be delivered on Monday.

That could be delayed if the Commonwealth wants more time to ensure that the written verdict does not contain any sensitive national security information.

There is no automatic criminal prosecution following the Federal Court ruling, so Roberts-Smith is completely free to do what he did this week and sunbathe in Bali.

Nine, who has spent an estimated $15 million over the past five years fighting Australia’s most decorated living soldier, has understandably reacted to the coverage with glee.

But a source close to the publisher said nine executives had considered the case could go either way and were worried until Judge Besanko released his findings.

Roberts-Smith alleged that nine newspapers defamed him in a series of articles portraying him as a war criminal, bully and perpetrator of domestic violence.

Accusing a recipient of the Victoria Cross of killing unarmed prisoners and punching his mistress in the face was unquestionably damaging to his reputation as a war hero.

Judge Besanko’s job was to determine whether Nine had enough evidence to support the allegations it had made and to decide whether or not they were “substantially true.”

The threshold to determine that in a civil case is ‘based on probabilities’ rather than the much tougher test in a criminal case of ‘beyond reasonable doubt’.

Judge Besanko found that most of the defamatory “allegations” Roberts-Smith had made about his conduct and character were largely true.

One such allegation was that in September 2012 the then corporal murdered an unarmed civilian named Ali Jan in Darwan by kicking him off a cliff and ordering subordinate soldiers to kill him.

Two others arose from an operation at a compound called Whiskey 108 in Kakarak in April 2009.

Justice Besanko found it essentially true that Roberts-Smith killed an Afghan with a prosthetic leg by machine gun shooting him.

He also discovered that Roberts-Smith had pressured an inexperienced SAS member to execute an elderly unarmed Afghan to “bleed the rookie” on the same mission.

Judge Besanko’s summary contained conclusions that may sound final, but are only legally binding in the defamation action Roberts-Smith took against Nine.

Finding Nine had shown that “the applicant has violated the moral and legal rules of military deployment and is therefore a criminal” does not mean that Roberts-Smith has committed a crime.

Finding “the applicant while a member of the SASR committed murder by shooting a man with a prosthetic leg” does not mean that Roberts-Smith has been convicted of murdering anyone.

Judge Besanko’s findings didn’t go all the way in Nine’s direction. The publisher had failed to establish the truth of reports that Roberts-Smith was complicit in the October 2012 murders of two other Afghan men in Syahchow and Fasil.

He also found that the newspapers had failed to prove that Roberts-Smith had beaten his former mistress in a Canberra hotel room in March 2018.

The judge accepted that Roberts-Smith punched an unarmed Afghan in the face and knee in the abdomen in 2010, and authorized the attack of another unarmed Afghan in 2012.

Findings that Roberts-Smith was involved in a campaign of bullying against a soldier, including threats of violence, seem unlikely to ever be the subject of criminal charges.

Any prosecution of Roberts-Smith would face enormous challenges. The Crown would have to prove that certain events took place more than ten years ago in a war zone.

In the defamation case, evidence for and against Roberts-Smith was provided by serving and former SAS members and not all of them agreed with what they saw.

Some suffered psychological injuries from their war service and are barred from testifying again if Roberts-Smith faces criminal charges.

Obtaining evidence from witnesses in Afghanistan, as happened in the defamation case, may prove impossible now that the country is back under Taliban control.

Roberts-Smith, who denied any allegation of wrongdoing, could not be forced to testify before a jury or a judge and could assert that right not to.

What is known is that Australian Federal Police officers investigating possible war crimes in Afghanistan were present in court to observe the libel trial.

The Office of the Special Investigator (OSI) is responsible for reviewing potential criminal cases arising from the actions of Australian soldiers from 2005 to 2016.

The agency was established after the Inspector General of the Australian Forces Inspector General’s Afghanistan Investigative Report was published by Judge Paul Brereton in November 2020.​

The OSI works with the Federal Police to investigate allegations of offenses under Australian law arising out of or related to violations of the laws of armed conflict.

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

The Darwan and Whiskey 108 deaths for which Judge Besanko found Roberts-Smith responsible are among the incidents under investigation by the OSI.

In March, former SAS soldier Oliver Schulz was charged with the May 2012 murder of a farmer on patrol in southern Afghanistan’s Uruzgan province.