Thu, Jun 1, 2023 4:13 AM
By MARK BAKER and ROD McGUIRK, Associated Press
SYDNEY (AP) — Australia’s most decorated living war veteran unlawfully killed prisoners and committed other war crimes in Afghanistan, a judge ruled Thursday in dismissing the claims by Victoria Cross recipient Ben Roberts-Smith that he was defamed by media.
Federal Court Justice Anthony Besanko ruled that the articles published in 2018 were substantially true about a number of war crimes committed by Roberts-Smith, a former Special Air Service Regiment corporal who now is a media company executive.
Besanko found Roberts-Smith, who was also awarded the Medal of Gallantry for his Afghanistan War service, “broke the moral and legal rules of military engagement” and disgraced Australia through his conduct.
The ruling is regarded as a significant win for press freedom against Australia's extraordinarily restrictive defamation laws following a hard-fought trial over 110 court hearing days that is estimated to have cost more than 25 million Australian dollars ($16 million) in legal fees.
Proven allegations included that Roberts-Smith, the son of a judge, used a machine gun to shoot a prisoner with a prosthetic leg in the back at a Taliban compound codenamed Whiskey 108 in Uruzgan province in 2009. He kept the man's prosthetic as a novelty beer drinking vessel.
The man was one of two unarmed Afghans that Roberts-Smith's patrol had dragged from a tunnel. Roberts-Smith pressured a “newly deployed and inexperienced” soldier to kill the second, older man to “blood the rookie,” the court found.
The proven accusations also included that Roberts-Smith killed an unarmed, handcuffed farmer named Ali Jan by kicking him from a cliff top and into a riverbed at the Afghan village of Darwan in 2012. Roberts-Smith then directed a soldier under his command to shoot Jan dead.
Also found to be true were accusations that Roberts-Smith, who stands 2.02 meters (6 feet, 7 inches) tall, bullied soldiers and assaulted Afghan civilians.
Two of six unlawful killings Roberts-Smith was accused of involvement in were not proven to the civil court standard of balance of probability, the judge found.
Reports of domestic violence allegedly committed by Roberts-Smith were also found to be unproven and defamatory. But the judge found the unproven allegations would not have further damaged the veteran’s reputation.
Had such war crime allegations been made in a criminal court, they would have had to be proven to a higher standard of beyond reasonable doubt.
Roberts-Smith, 44, had denied any wrongdoing. His lawyers blamed “corrosive jealousy” by “bitter people” within the SAS who had run a “poisonous campaign against him.”
The civil case made claims of defamation against The Sydney Morning Herald, The Age and The Canberra Times over their articles.
Nick McKenzie, one of the reporters responsible for the contentious articles, praised the SAS veterans who had testified against the national hero.
“Today is a day of justice. 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,” McKenzie told reporters outside court.
“Australia should be proud of those men in the SAS. They are the majority in the SAS and they stood up for what was right and they have been vindicated,” McKenzie added.
Roberts-Smith’s lawyer, Arthur Moses, asked for 42 days to consider lodging an appeal to the Full Bench of the Federal Court.
The case's legal costs have been underwritten by billionaire Kerry Stokes, executive chair of Seven West Media where Roberts-Smith is employed.
Stokes has stood by Roberts-Smith, saying in a statement: “The judgment does not accord with the man I know.”
“I know this will be particularly hard for Ben who has always maintained his innocence,” Stokes said.
Roberts-Smith had attended every day of his trial but did not appear at the Sydney court for the decision. Media have published a photo of him sunning himself by a swimming pool Wednesday on the Indonesian resort island of Bali.
Roberts-Smith is one of several Australian military personnel under investigation from Australian Federal Police for alleged war crimes in Afghanistan.
The first criminal charge for an alleged illegal killing in Afghanistan was made in March. Former SAS trooper Oliver Schulz was charged with the war crime of murder in the death of an Afghan who was shot in 2012 in a wheat field in Uruzgan province.
Australian Special Air Service Association chair Martin Hamilton-Smith described the ruling as a “very disappointing day” for the elite regiment. He said if more veterans were to be prosecuted for war crimes, they should be charged without delay.
"The only way you'll get to the real truth of this is to get it into a criminal court where both sides of the story can be told and the facts established beyond reasonable doubt," Hamilton-Smith said.
Roberts-Smith became a national hero in 2011 when he was awarded the Victoria Cross, Australia's highest award recognizing gallantry in the presence of an enemy. He met Queen Elizabeth II several times as a distinguished Australian.
He was awarded the medal for attacking a machine gun nest during a battle at Tizak, Kandahar, in 2010. Roberts-Smith was credited with killing two machine-gunners and an insurgent about to launch a rocket grenade. No war crime allegations stem from that battle.
McGuirk contributed from Canberra, Australia.