Roberts-Smith broke moral and legal rules, judge finds

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.

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