In 2018, three publications claimed that Ben Roberts-Smith, a Victoria Cross recipient, likely killed unarmed Afghan civilians. After the Sydney Morning Herald, The Age, and Canberra Times revealed that Roberts-Smith had killed Afghans on repeated deployments, he sued for slander. He said the disclosures tarnished his image and made him appear to have “broken the moral and legal rules of military engagement” and “disgraced his country and the Australian army”.
In a summary judgment read out in Sydney on Thursday, Judge Anthony Besanko said that on the balance of probabilities, the evidential standard for a civil trial, “the respondents had established the substantial truth” of several of the allegations, including that in 2012 Roberts-Smith kicked an unarmed and handcuffed Afghan man off a cliff and then ordered two soldiers in his unit to kill the badly injured man. The journalists also confirmed that Besanko had murdered a crippled Afghan guy in 2009 and ordered the death of a man who had hidden himself in a tunnel in Whisky 108, a bombed-out facility. The publishers chose the “truth” defense, and Australia watched the 110 days of proceedings, which were delayed by the COVID-19 epidemic, until closing arguments in July 2022. Roberts-Smith accused 40 witnesses, including soldiers, of envy and lying. Media law, freedom of expression, and defamation specialist Andrew Kenyon, a Melbourne Law School professor, said the verdict was devastating for the veteran. “His name will very much linked in the public mind with the murders that the judge said he committed directly or ordered through other actions,” Kenyon told reporter. “It’s a classic defamation case where the strongest result is to change the reputation of the person who brought the case.” Roberts-Smith, who was absent in court for the verdict, was found to have abused fellow troops, although he was acquitted of two 2012 killings in Afghanistan and of attacking his lover. The administration postponed the full public judgment until Monday for national security reasons. Thursday’s verdict comes amid increased scrutiny of Australia’s military.
The 2020 Brereton Report found “credible evidence” that special forces murdered 39 civilians in Afghanistan. The study recommends authorities examine 19 special forces troops for 23 events involving the killing of “prisoners, farmers or civilians” between 2009 and 2013. In March, the OSI accused a 41-year-old former soldier with murder for killing an Afghan civilian. He is the first Australian military personnel charged with war crimes and risks a life sentence if convicted. Smith-Roberts’ legal team has 42 days to appeal. Costs will be heard in four weeks. According to Kenyon, the complicated defamation lawsuit cost 25 million Australian dollars ($16.2m) and was the most costly in the country.
