In 2018, after the Age, the Sydney Morning Herald and the Canberra Times published a series of stories alleging Ben Roberts-Smith committed murder and other crimes, he sued the three newspapers for defamation.
Roberts-Smith alleged the stories falsely portrayed him as a criminal who “broke the moral and legal rules of military engagement” and “disgraced” his country and its army. Healleged the newspapers made 14 defamatory imputations against him, including that he “murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him” and “committed murder by machine gunning a man with a prosthetic leg”.
Over a year-long trial, the newspapers defended their reporting as true. Justice Anthony Besanko delivered his judgment on Thursday – and ruled that the papers had proved the truth that Roberts Smith was responsible for multiple murders.
These were the key issues in the case.
Death at Darwan
The most dramatic allegation was that Roberts-Smith, on a mission to the southern Afghan village of Darwan in 2012, marched a handcuffed man named Ali Jan to stand above a 10-metre-high cliff that dropped down to a dry riverbed below.
A former comrade of Roberts-Smith, a junior member of his patrol, told the court in evidence that Roberts-Smith then “walked forward and kicked the individual in the chest”.
“The individual was catapulted backwards. I saw the individual’s face strike a large rock, [he] sustained a serious injury. He knocked out a number of his teeth, including his front teeth.”
That account was supported by evidence from Afghan witnesses also arrested in Darwan on that day.
The court heard the man survived the fall but was significantly injured. Roberts-Smith then allegedly ordered a subordinate soldier to shoot Ali Jan dead before the body was dragged into a cornfield.
Roberts-Smith and the soldier who allegedly shot Ali Jan, also subpoenaed to give evidence, denied the allegations. They told the court the man killed was a “spotter” – a forward scout for enemy insurgents – found hiding in the cornfield and carrying a radio. He was a legitimate target, lawfully killed, the court heard.
Whiskey 108: the men in the tunnel
Another prominent allegation concerned a raid on a bombed-out compound codenamed Whiskey 108, in 2009, within which a secret tunnel was found.
The newspapers allege two men were found hiding in the tunnel: one an elderly man, the other a younger man with a prosthetic leg. The men allegedly came out of the tunnel unarmed and surrendered.
Roberts-Smith allegedly ordered a junior soldier on his patrol to execute the old man, before manhandling the man with the prosthetic leg outside the compound, where he threw him to the ground and fired his Para Minimi machine gun into his prone body.
The man’s leg was later souvenired by another soldier and used by Australian SAS troops as a macabre celebratory drinking vessel at their on-base bar, the Fat Ladies’ Arms.
Roberts-Smith told the court the allegation could not be true, because “there were no men in the tunnel”. He was supported by some members of his patrol, contradicted by others.
On Roberts-Smith’s evidence, two Afghan men were killed at Whiskey 108 legitimately, in accordance with the Australian troops’ rules of engagement: they were “squirters” – Taliban members trying to flee the compound.
Roberts-Smith said he had shot one of the men dead. The other Afghan was killed by another Australian soldier whose identity, Roberts-Smith told the court, remains unknown to him to this day. He credits the mystery soldier with saving his life.
Several soldiers gave evidence that they witnessed Roberts-Smith throw the disabled, unarmed prisoner to the ground and kill one: one testifying it was “an exhibition execution”.
But, in an illuminating aside, one soldier volunteered to the court: “I still don’t agree with the fact BRS [Roberts-Smith] is here [in court], under extreme duress, for killing bad dudes we went there to kill.”
Claims of domestic violence
Also interrogated in court was an allegation that Roberts-Smith punched a woman with whom he was having an affair after an argument after a dinner at Parliament House in Canberra in 2018.
She told the court that she had fallen down a set of stairs at Parliament House. Back at their hotel room, when she told him her head hurt, “He said something like, ‘It’s going to fucking hurt more,’ or, ‘I’ll show you hurt’... and then he punched me with his right fist on the left side of my face.”
Roberts-Smith denied ever hitting her, and told the court he had nursed the woman’s injuries through the night, including putting an icepack on her head. He said the black eye she sustained was the result of falling down the stairs earlier in the evening.
“The whole story is a fabrication,” he told the court. “I’ve never hit a woman. I never would hit a woman. And I certainly never hit [her].”
Months of extraordinary evidence
Over more than 100 days of evidence, the trial heard extraordinary testimony from dozens of former and serving SAS soldiers and officers, including several who continue to serve in the regiment, some at senior operational levels.
The court heard: of a quavering teenager shot in the head described as “the most beautiful thing I’ve ever seen”; of a laptop potentially containing evidence being burnt in a suburban back yard; of threatening anonymous letters being sent to soldiers; of a woman being surveilled and filmed in intimate moments; and of clandestine evidence being buried in a child’s lunchbox.
Dramatically, three SAS soldiers – each accused of murder on separate missions – refused in court to answer questions about what they did in Afghanistan, objecting on the grounds that any truthful answer they gave would be self-incriminatory. Each was permitted by Besanko not to answer.
What was at stake?
The newspapers’ lead barrister, Nicholas Owens SC, told the court that, for all its chaos, laws applied to war. Soldiers were not free to kill indiscriminately.
“Not a single one of the murders we allege … involved decisions that were made in the heat of battle … the ‘fog of war’.”
The allegations of murder before the court were the deaths of civilians or insurgents who had been placed hors de combat (no longer able to fight), Owens said.
“One matter is perfectly and unambiguously clear … once a person has been placed under control, no matter that he may be the most brutal, vile member of the Taliban imaginable, an Australian soldier cannot kill him. To do so is murder.”
Roberts-Smith’s barrister, Arthur Moses SC, told the court in his closing submissions:
“This trial, which has lasted over 100 days, has been called a great many things: the trial of the century, a proxy war crimes trial, and an attack on the freedom of the press. It is none of these. It is a case which has been brought because the respondents chose to defame Mr Roberts-Smith.
“This has been a case about how Mr Roberts-Smith, the most decorated Australian soldier, and a man with a high reputation for courage, skill and decency in soldiering, had that reputation destroyed.”
Guardian Australia will publish a special episode of the podcast Ben Roberts-Smith v the media on Friday morning. Subscribe to Ben Roberts-Smith v the media to catch up on the court case and be notified of new episodes
