Roberts-Smith broke moral and legal rules, judge finds

Ben Roberts-Smith has suffered a massive loss in a defamation case centred on war crime allegations. (Joel Carrett/AAP PHOTOS)

Victoria Cross recipient Ben Roberts-Smith committed a slew of war crimes in Afghanistan, murdering unarmed prisoners, a Federal Court judge has found.

Mr Roberts-Smith suffered a massive court loss, ending an almost five-year defamation battle between the former-SAS corporal and three mastheads.

After a 109-day hearing and mulling over evidence from 41 witnesses, Justice Anthony Besanko found a number of 2018 reports published by The Age, The Sydney Morning Herald and The Canberra Times about war crimes committed by Mr Roberts-Smith were substantially true.

The claims, reported by journalists Nick McKenzie, Chris Masters and David Wroe, included that Mr Roberts-Smith executed a prisoner with a prosthetic leg by firing a machine gun into his back at a compound called Whiskey 108 in 2009.

He then took the fake leg back to Australia where he encouraged soldiers to use it as a novelty drinking vessel.

At the same location, he ordered the execution of an elderly Afghan man found hiding in a tunnel.

The ex-special forces corporal, referred to as "Leonidas" in some of the articles, also kicked an unarmed, handcuffed farmer named Ali Jan off a cliff into a river bed at Darwan in September 2012.

He then ordered soldiers under his command to execute him.

On another occasion, Mr Roberts-Smith pressured a "newly deployed and inexperienced" soldier to kill an elderly, unarmed Afghan to “blood the rookie”.

Reports he bullied soldiers and unlawfully assaulted Afghan civilians were also true.

Mr Roberts-Smith "broke the moral and legal rules of military engagement" and disgraced his country through his conduct, Justice Besanko found.

Reports of domestic violence towards Mr Roberts-Smith's mistress at the Hotel Realm in Canberra after a Parliament House function in March 2018 were found to have been defamatory.

"I am not satisfied that (the woman's) evidence is sufficiently reliable to form the basis of a finding that the assault occurred," the judge said.

A further claim Mr Roberts-Smith threatened to report another soldier to the International Criminal Court for firing at civilians was also defamatory.

But Justice Besanko agreed with the media companies' contextual truth defences, saying harm from these defamatory reports would not have further damaged the ex-soldier's already battered reputation.

"In light of my conclusions, each proceeding must be dismissed," the judge said.

The VC recipient, who was spotted at a resort in Bali on Wednesday, was not in court on Thursday when the decision was read out to a packed courtroom.

Outside court, McKenzie said it was small justice for Afghan victims of Mr Roberts-Smith.

"It's a day of justice for those brave men of the SAS who stood up and told the truth about who Ben Roberts-Smith is - a war criminal, a bully and a liar," he said.

Nine publisher James Chessell said the findings confirmed Mr Roberts-Smith breached the Geneva Convention in a critical step towards justice for the families of victims.

"Most importantly, it is a vindication for the brave soldiers of the SAS who served their country with distinction and then had the courage to speak the truth about what happened in Afghanistan," he said.

Barrister Nicholas Owens SC said the media outlets would seek costs for defending the lawsuits.

This could include indemnity costs, typically only granted in certain circumstances, including where someone has launched a lawsuit with no prospects of success.

Estimates put the legal bill at more than $25 million for both the former soldier and media firms.

In November 2020, a report into alleged war crimes by special forces in Afghanistan was released finding credible evidence 39 civilians and prisoners were unlawfully killed by Australian troops while two others were subject to cruelty from 2007 to 2013.

Two years later, more than 40 alleged offences were under investigation.

Former SAS soldier Oliver Jordan Schulz, who was deployed to Afghanistan, has been criminally charged for allegedly killing Dad Mohammad while the Afghan was unarmed in a wheat field in 2012.

Mr Roberts-Smith has not been charged and maintains his innocence. 

He has 42 days to appeal.

Lifeline 13 11 14

Open Arms 1800 011 046

What is AAPNews?

For the first time, Australian Associated Press is delivering news straight to the consumer.

No ads. No spin. News straight-up.

Not only do you get to enjoy high-quality news delivered straight to your desktop or device, you do so in the knowledge you are supporting media diversity in Australia.

AAP Is Australia’s only independent newswire service, free from political and commercial influence, producing fact-based public interest journalism across a range of topics including politics, courts, sport, finance and entertainment.

What is AAPNews?
The Morning Wire

Wake up to AAPNews’ morning news bulletin delivered straight to your inbox or mobile device, bringing you up to speed with all that has happened overnight at home and abroad, as well as setting you up what the day has in store.

AAPNews Morning Wire
AAPNews Breaking News
Breaking News

Be the first to know when major breaking news happens.


Notifications will be sent to your device whenever a big story breaks, ensuring you are never in the dark when the talking points happen.

Focused Content

Enjoy the best of AAP’s specialised Topics in Focus. AAP has reporters dedicated to bringing you hard news and feature content across a range of specialised topics including Environment, Agriculture, Future Economies, Arts and Refugee Issues.

AAPNews Focussed Content
Subscription Plans

Choose the plan that best fits your needs. AAPNews offers two basic subscriptions, all billed monthly.

Once you sign up, you will have seven days to test out the service before being billed.

AAPNews Full Access Plan
Full Access
AU$10
  • Enjoy all that AAPNews has to offer
  • Access to breaking news notifications and bulletins
  • Includes access to all AAPNews’ specialised topics
Join Now
AAPNews Student Access Plan
Student Access
AU$5
  • Gain access via a verified student email account
  • Enjoy all the benefits of the ‘Full Access’ plan at a reduced rate
  • Subscription renews each month
Join Now
AAPNews Annual Access Plan
Annual Access
AU$99
  • All the benefits of the 'Full Access' subscription at a discounted rate
  • Subscription automatically renews after 12 months
Join Now

AAPNews also offers enterprise deals for businesses so you can provide an AAPNews account for your team, organisation or customers. Click here to contact AAP to sign-up your business today.

SEVEN DAYS FREE
Download the app
Download AAPNews on the App StoreDownload AAPNews on the Google Play Store