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Australia’s most decorated soldier has lost a multi-million dollar defamation lawsuit against three newspapers that accused him of committing war crimes in Afghanistan – including killing unarmed prisoners – as a judge ruled that their reports met the standards of truth.
The ruling, handed down by Federal Court Justice Anthony Besanko on Thursday, brought a dramatic end to a long-running trial and dealt a blow to the country’s military reputation, already tarnished by revelations that emerged in 100 day testimony.
Besanko found on Thursday that The Age, The Sydney Morning Herald, and The Canberra Times had established much of the truth in many of the claims about Ben Roberts-Smith, but not all of them. In some cases, he has found papers that establish contextual truth, which is also a defense under Australia’s Defamation Act. In others, he found that the papers did not establish the truth.
In the most damning findings, Besanko said the documents show there is a lot of truth to the allegation that Roberts-Smith, a former special forces soldier, killed an unarmed Afghan civilian by kicking him off a cliff and ordering the troops under his command to shoot him. .
Besanko also found considerable truth in the claim that Roberts-Smith shot dead a man with a prosthetic leg in Afghanistan with a machine gun, then took the prosthetic leg back to Australia and encouraged his followers. soldier to use it as a drinking vessel.
The truth-seeking for the most serious allegations took a toll on the already tarnished reputation of Roberts-Smith, who was awarded Australia’s highest medal for gallantry, the Victoria Cross, and hailed as a hero for his bravery and leadership.
His honors extend beyond the battlefield — in 2013 he was named “Father of the Year,” posing for photos with his young family.
But that reputation began to crumble after two veteran journalists investigated allegations that he and his SAS units had committed war crimes while in Afghanistan.
The Age, The Sydney Morning Herald, and The Canberra Times relied on a defense of the truth for a series of articles published in 2018 that painted the elite soldier as a bully and murderer who lied to protect his reputation.
The ruling in favor of the papers was celebrated by supporters of press freedom, who said it would harden the resolve of media companies to pursue costly investigative cases in a country with difficult defamation law.
Outside court, Nine’s managing director of publishing James Chessell said the verdict was a vindication of journalists and newsrooms that support public interest journalism.
“Most importantly, it’s a vindication for the brave SAS soldiers who served their country with distinction, and then had the courage to tell the truth about what happened in Afghanistan,” Chessell said.
The Age and The Sydney Morning Herald are published by Nine, a CNN affiliate. The Canberra Times published similar stories but has since changed ownership.
Peter Bartlett, a partner at the law firm MinterEllison, which represents the papers and the journalists, said the result was a validation of the defense’s truth.
“Never before has Australia seen a media defendant face such challenges from a plaintiff and his funders. This is a huge and epic victory for free speech and the right to the public will know,” he said in a statement.
Roberts-Smith, a former SAS soldier, was not in court to hear the verdict. A day before the decision, local media published photos of him poolside in Bali, Indonesia.
Despite his absence, a large media contingent gathered at the Federal Court in Sydney to hear the verdict, which was broadcast from the courtroom and broadcast live on national television.
The journalists behind the stories – Nick McKenzie and Chris Masters – are multi-award-winning investigative reporters known for their meticulous attention to detail. After the decision, McKenzie tweeted one word: “Justice.”
Saeed Khan/AFP/Getty Images
Journalists Chris Masters (L) and Nick McKenzie (R) speak to the media outside the Federal Court of Australia in Sydney on June 1, 2023. Ben Roberts-Smith, one of the Australian soldiers who most decorated, 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.
Outside court, Masters and McKenzie paid tribute to the people who came forward to testify against Roberts-Smith. They included Afghan villagers who were questioned on a live court link about the killings they had witnessed.
“Today is a day of a little justice for Ben Roberts-Smith’s Afghan victims,” McKenzie said.
“Ali Jan is the man who was kicked off the cliff. Ali Jan is a father. Ali Jan is a husband … He was kicked off the cliff by Ben Roberts-Smith, and he was killed with Ben Roberts-Smith. There is little justice for him. ”
Besanko said he would publish the “lengthy” reasons in open court for his findings and provide a closed court version — about 50-pages long — in a more limited number of people for reasons of national security.
He said he will ask the government to consider publishing the closed court report after redacting the sensitive information.
Not only is this trial about Roberts-Smith’s reputation, the claims against him reveal the inner workings of Australian troops sent to Afghanistan.
Serving and former elite troops were among those who gave evidence at the trial – some with their identities hidden but all providing a unique insight into battlefield culture.
Claims of atrocities committed by elite troops were echoed in the Brereton Report, a four-year investigation into alleged war crimes in Afghanistan released in November 2020.
04:00 – Source: CNN
Report alleges unlawful killing of Afghan civilians by elite Australian troops (November 2020)
At that time, the Chief of Defense Force of Australia, Gen. Angus Campbell said the report revealed a “warrior culture” among some members of Australian special forces serving in Afghanistan.
Campbell “sincerely and unreservedly” apologized to the people of Afghanistan for the behavior the report said. “It will destroy the lives of Afghan families and communities, causing immeasurable pain and suffering,” he said.
It is unclear what will happen to the medals Roberts-Smith earned for his military service – or whether any charges will be brought.
Outside court Chessell, from Nine, said the stories had a lasting impact on how Australian soldiers behaved in Afghanistan.
“The story continues beyond this judgment. We will continue to hold accountable people involved in war crimes. The responsibility for these atrocities does not end with Ben Roberts-Smith,” he said.
