Court finds Victoria Cross winner Ben Roberts-Smith committed war crimes

Victoria Cross recipient Ben Roberts-Smith committed war crimes while in Afghanistan including the murder of unarmed prisoners, a Federal Court judge has found after a defamation trial.

Ben Roberts-Smith sued media outlets for defamation over allegations of war crimes in Afghanistan but the Federal Court ruled against him. Photo: AAP/Tracey Nearmy

Ben Roberts-Smith sued media outlets for defamation over allegations of war crimes in Afghanistan but the Federal Court ruled against him. Photo: AAP/Tracey Nearmy

Roberts-Smith suffered the court loss on Thursday afternoon, ending an almost five-year legal battle between the former-SAS corporal and three media outlets.

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 Roberts-Smith were substantially true.

These claims included that 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.

The ex-soldier, 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 in September 2012 at Darwan and ordered soldiers under his command to execute him.

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

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

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 Roberts-Smith’s mistress 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 that Roberts-Smith threatened to report another soldier to the International Criminal Court for firing at civilians was also defamatory.

However, 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.

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The Victoria Cross recipient, who was seen at a resort in Bali on Wednesday, was not present at Thursday’s hearing.

The decision, in which the judge ordered the three cases to be dismissed, was read out to a packed courtroom and watched by thousands of people online.

Barrister Nicholas Owens SC, representing the three media companies, said his clients would seek their costs of defending the lawsuits.

This could include an application for indemnity costs, which are typically only granted in certain circumstances including where someone has launched a lawsuit that has no prospects of success.

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

Roberts-Smith has been given 42 days to appeal the decision.

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