Roberts-Smith defamation judgment: war hero to zero

Twelve years ago Ben Roberts-Smith became the most highly decorated member of the Australian Defence Force when he was awarded the Victoria Cross for "conspicuous gallantry and daring" in leading an attack against three machine gun positions and superior numbers of heavily armed Afghan insurgents.

The two-metre-tall Special Air Services corporal had already been awarded a Medal for Gallantry for bravery under fire in Afghanistan in 2006.

Other accolades and prized positions followed, such as chairing the Australia Day Council and becoming Australian Father of the Year and a senior executive for Network Seven.

In 2018, media reports surfaced alleging he had committed war crimes, bullied SAS comrades and assaulted his mistress.

The reports "smashed and destroyed" his reputation, the start of a defamation trial in the Federal Court was told in June 2021.

On Thursday, almost 11 months after the trial finished, Federal Court Justice Anthony Besanko left that reputation in tatters when he dismissed the cases against the publishers of the Sydney Morning Herald, The Age and Canberra Times, as well as three journalists.

Mr Roberts-Smith, the 44-year-old son of a retired judge, denied all claims of wrongdoing - including that he committed or was complicit in six murders in Afghanistan between 2006 and 2012.

The newspapers defended the allegations contained in their reports as true.

The key allegations Justice Besanko found were substantially true included:

* During an April 2009 SAS mission in Uruzgan province Mr Roberts-Smith made a "rookie" soldier execute one of two unarmed Afghans taken prisoner from a tunnel and executed the other, who had a prosthetic leg, in a burst of machine gun fire.

* On an SAS mission in the village of Darwan, also in Uruzgan, in September 2012 he kicked a handcuffed and innocent farmer off a cliff before that man was dragged across a creek bed into a cornfield and shot dead.

Justice Besanko also found reports Mr Roberts-Smith murdered or was complicit in the murders of two Afghan men on different missions in 2012 were substantially true.

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

But truth defences were not accepted over allegations he shot a terrified adolescent prisoner in the head before an AK-47 was planted on his body to give the impression he was armed that same year.

Justice Besanko accepted a contextual truth defence to reports Mr Roberts-Smith punched his mistress in the temple, causing her to stagger and fall onto a bed in a Canberra hotel room in March 2018.

That defence means no further harm was done to his reputation from the defamation.

Having attended court throughout the long trial, the former soldier was not in court to hear the judgment.

He was photographed sunning himself beside a pool in Bali the day before.

When he took the stand himself as the first witness, Mr Roberts-Smith told the court his VC for the 2010 battle of Tizak made him a tall poppy within the SAS and served to broaden attacks on him from envious associates out of "pure spite".

"It put a target on my back," he said.

His barristers accused SAS witnesses against him of lying and jealousy.

Arthur Moses SC said a "war of words" was then lobbed "in the dark and through the media", and journalists Chris Masters and Nick McKenzie based sensationalist publications on rumour, hearsay and contradictory accounts.

But Nicholas Owens SC, representing the media outlets, said their witnesses had no motive to lie and many were unwillingly forced to attend court to relive some of their most harrowing and traumatic experiences.

He blamed a "culture of silence" within the SAS preventing the men from speaking up against the "heinous acts of criminality" for years.

Also testifying for the media outlets was Mr Roberts-Smith's ex-wife Emma Roberts who denied seeking revenge or wanting to destroy him in court, saying she hoped he "survives this nightmare".

That was despite describing him as a "lying, cheating c*** of a human" after their 17-year marriage broke down in January 2020.

Investigations by the Office of the Special Investigator and Australian Federal Police into alleged war crimes by Australian troops in Afghanistan are ongoing.

Those investigations followed the Brereton report finding credible evidence of war crimes, referring to 36 matters including allegations of 39 murders.

Late last year the office confirmed the number of matters being investigated had risen into the 40s.

Former SAS soldier Oliver Schulz in March became the first ADF member to be charged with war crime murder.

Mr Roberts-Smith had sought aggravated damages of up to 10 years or more in lost income from jobs including a partnership with consulting firm PwC and lucrative public speaking gigs.

Lifeline 13 11 14

Open Arms 1800 011 046

Australian Associated Press