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Ben Roberts-Smith Loses Appeal in War Crimes Defamation Case
Australia’s most decorated living soldier, Ben Roberts-Smith, has lost his appeal against a significant defamation ruling that determined he committed war crimes. The Ben Roberts-Smith defamation case, centered around allegations of misconduct in Afghanistan, has been closely watched in Australia and internationally. The court’s decision to uphold the original judgement marks a crucial moment in the legal battle.
Background of the Case
In 2023, a judge concluded that news articles alleging the Victoria Cross recipient murdered four unarmed Afghans were substantially true. Mr. Roberts-Smith contested this ruling, claiming the judge made legal errors.
The civil trial held historical significance as the first instance of a court assessing war crime allegations against Australian forces.
Appeal Dismissed
On Friday, a panel of three Federal Court judges unanimously affirmed the initial judgement. Despite this setback, Mr. Roberts-Smith has indicated his intention to appeal the decision “immediately” to the High Court of Australia.
“I continue to maintain my innocence and deny these egregious spiteful allegations,” he stated.
Mr. Roberts-Smith, who left the defence force in 2013, has not faced criminal charges regarding these claims due to the higher burden of proof required in criminal court.
The Defamation Lawsuit
The former special forces corporal initiated legal action against three Australian newspapers concerning articles detailing alleged misconduct during his deployment in Afghanistan between 2009 and 2012 as part of a US-led coalition.
In 2018, when the articles surfaced, Mr. Roberts-Smith was widely regarded as a national hero, having received Australia’s highest military honor for his actions against Taliban fighters who attacked his Special Air Service (SAS) platoon.
The 46-year-old maintained that the alleged killings occurred lawfully during combat or did not occur at all, asserting that the newspaper reports ruined his life.
His defamation case, sometimes referred to as “the trial of the century” in Australia, spanned over 120 days and is estimated to have cost up to A$35 million ($22.5 million; £16.9 million).
Key Findings of the Initial Ruling
In June 2023, Federal Court Justice Antony Besanko dismissed the case against The Age, The Sydney Morning Herald, and The Canberra Times, finding it “substantially true” that Mr. Roberts-Smith murdered unarmed Afghan prisoners and civilians and bullied fellow soldiers.
Justice Besanko also determined that Mr. Roberts-Smith lied to conceal his misconduct and intimidated witnesses.
However, allegations of punching his lover, threatening a peer, and committing two other murders were not proven to the “balance of probabilities” standard required in civil cases.
Grounds for Appeal
The core argument of the appeal was that Justice Besanko did not give adequate consideration to Mr. Roberts-Smith’s presumption of innocence, according to his barrister Bret Walker, SC.
Legal principles dictate that judges must exercise caution when handling civil cases involving severe allegations and making findings with grave consequences.
Mr. Walker contended that the evidence presented by the newspapers did not meet the necessary standard.
Attempt to Reopen the Case
Months after the appeal hearing, Mr. Roberts-Smith’s legal team sought to reopen the case, alleging misconduct by one of the reporters involved.
They claimed a miscarriage of justice occurred because Nick McKenzie, a journalist who co-authored the articles, allegedly unlawfully obtained details about Mr. Roberts-Smith’s legal strategy.
Leaked Phone Call Allegations
The defense pointed to a leaked phone call between Mr. McKenzie and a witness, which The Age, The Sydney Morning Herald, and The Canberra Times suggested may have been recorded illegally.
Court’s Rejection of Appeal Arguments
On Friday, the panel of judges rejected this argument as well.
They stated that “the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men.”
“To the extent that we have discerned error in the reasons of the primary judge, the errors were inconsequential,” they added.
The court also ordered Mr. Roberts-Smith to cover the newspapers’ legal costs.
Reactions to the Ruling
In a statement, Mr. McKenzie described the ruling as an “emphatic win.”
He expressed gratitude to the SAS soldiers who “fought for the Australian public to learn the truth” and paid tribute to the Afghan “victims of [Mr.] Roberts-Smith.”
“It should not be left to journalists and brave soldiers to stand up to a war criminal,” he said. “Australian authorities must hold Ben Roberts-Smith accountable before our criminal justice system.”