Australia: Victoria Cross recipient Ben Roberts-Smith loses war crimes defamation case against media outlets

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Thursday, June 8, 2023

Roberts-Smith in 2015.
Image: Nick-D.

On June 1, Justice Anthony Besanko ended a defamation case from the most decorated Australian veteran alive, ex-Special Air Service Regiment (SAS) Corporal Ben Roberts-Smith, ruling in favour of the The Sydney Morning Herald, The Age and The Canberra Times.

The defendants claimed in 2018 to have uncovered Roberts-Smith committed war crimes in Afghanistan. He said their allegations cost him speaking contracts he would have earned hundreds of thousands of Australian dollars from.

The judge found some claims Roberts-Smith killed, or allowed or encouraged the killing of, unarmed people substantially true, so they met the civil principle of the balance of probabilities.

It's a day of justice for the 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.

—Nick McKenzie

Nick McKenzie, an investigative journalist who helped write the articles alleging Roberts-Smith's misconduct, declared: "It's a day of justice for the 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."

"[And] today is a day of some small justice for the Afghan victims of Ben Roberts-Smith," he continued.

Roberts-Smith was on the Indonesian island of Bali during the hearing, his attendance being optional.

The Guardian predicted he would have to pay the defendants millions of Australian dollars, with the parties having spent about AU$35 million on the trial; the paper estimated his employer, Seven Network head Kerry Stokes loaned Roberts-Smith AU$2 million to pursue the case, for which he put up his Victoria Cross as security.

The defendants reported Roberts-Smith: kicked a captured civilian off a cliff in Darwan in 2012 and ordered a soldier of lesser rank to fatally shoot him; machine-gunned a Taliban prisoner's back at least ten times in 2009 before he took the prosthetic leg to drink from; and ordered troops to kill two civilians as "blooding" — a ritual first killing.

A man testified Roberts-Smith claimed in "the most beautiful thing [Roberts-Smith had] ever seen" to have shot in the head an Afghan teenager the witness described as "shaking like a leaf" with fear.

Prosecution of Roberts-Smith would require "proof beyond a reasonable doubt".

ABC News reported many Australians saw Roberts-Smith as a national hero before the allegations; he received the Victoria Cross, Australia's highest honour for soldiers, in 2011 and met Queen Elizabeth II shortly after, announcing to press: "It is very humbling". In 2018, Australian Prime Minister Malcolm Turnbull proclaimed Roberts-Smith a "great Australian hero".