Ben Roberts-Smith case: Former SAS soldier committed war crimes

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A Federal Court judge has found decorated soldier Ben Roberts-Smith murdered unarmed prisoners while deployed in Afghanistan, in a historic victory for the three media outlets at the centre of his multimillion-dollar defamation suit.

Federal Court Justice Anthony Besanko found The Age, The Sydney Morning Herald and the Canberra Times had also proven that he had bullied fellow soldiers, but not that he had committed an act of domestic violence against a lover. However, in the context of the fact that the other allegations had been proved, Besanko found did not further harm Roberts-Smith’s reputation and therefore should be dismissed.

Ben Roberts-Smith outside the Federal Court of Australia earlier in the trial.Credit: Getty Images

The war veteran’s defamation trial against The Age and The Sydney Morning Herald, owned by Nine, and The Canberra Times, now under separate ownership, concluded in July last year after 110 days, 41 witnesses and more than $25 million in legal costs.

It is among the largest and most expensive defamation trials ever conducted in Australia and the first to examine in detail allegations of war crimes against members of the Special Air Service.

Roberts-Smith launched Federal Court defamation proceedings against the media outlets in August 2018 over a series of six articles published earlier that year. Half of the articles were online versions of the same print stories. He alleged the newspapers made up to 15 false and defamatory claims about him, including accusing him of war crimes and an act of domestic violence against a former lover.

In a judgment delivered on Thursday, Besanko ruled that 13 imputations were conveyed by the articles, including that Roberts-Smith had murdered unarmed civilians, broken the rules of law and disgraced his country. The newspapers sought to rely chiefly on a defence of truth to any of the meanings found to have been conveyed.

The media outlets alleged Roberts-Smith was involved in the murder of six Afghan prisoners, contrary to the rules of engagement that bound the SAS. The unlawful executions took place over five days in 2009 and 2012, the newspapers alleged, and the mastheads called 20 serving and former SAS soldiers to give evidence.

Roberts-Smith denied wrongdoing. He said five of the killings happened lawfully in battle, while the sixth killing did not happen.

Besanko found the news outlets had established the substantial truth of the key allegation in the case: that Roberts-Smith was involved in the unlawful killing of unarmed Afghan prisoners.

While not every murder allegation was established by the newspapers, the judge found they had proven some of those alleged killings had taken place. It was sufficient for Besanko to dismiss Roberts-Smith’s lawsuit.

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