Brisbane, Australia
CNN
—
Australia’s most decorated solider has lost a high stakes defamation case that centered on whether he committed war crimes in Afghanistan with a judge dismissing multiple claims he had brought against three newspapers in a trial.
The ruling, delivered by Federal Court Justice Anthony Besanko on Thursday, brings a dramatic end to a long-running trial and delivers another blow to the reputation of the nation’s military, already damaged by revelations that emerged during 100 days of testimony.
Besanko found Thursday that the papers established substantial truth in a number of claims, but not all of them. In some cases, he found the papers established contextual truth, which is also a defense under Australia’s Defamation Act. In others, he found that the papers had not established the truth.
In the most damning findings, Besanko said the papers had shown there was substantial truth to the allegation that Ben Roberts-Smith, a former special forces soldier, murdered an unarmed Afghan civilian by kicking him off a cliff and ordering troops under his command to shoot him.
Besanko also found there was substantial truth to claims that Roberts-Smith shot dead a man with a prosthetic leg in Afghanistan with a machine gun, then took the prosthetic leg back to Australia and encouraged his soldiers to use it as a drinking vessel.
The finding of truth for the most serious allegations batters the already damaged reputation of Roberts-Smith, who was awarded Australia’s highest medal for gallantry and once feted for his bravery and leadership.
The Age, The Sydney Morning Herald, and The Canberra Times had relied on a truth defense for a series of articles published in 2018 that painted the elite soldier as a bully and murderer who lied to protect his reputation.
The decision in favor of the papers is being celebrated by supporters of press freedom, who say it will harden the resolve of media companies to pursue high-cost investigative cases in a country with tough defamation laws.
Roberts-Smith, a former SAS soldier, wasn’t in court to hear the verdict. The day before the ruling, local media published photos of him beside a pool in Bali, Indonesia.
Despite his absence, a large media contingent gathered at the Federal Court in Sydney to hear the verdict, which was broadcast from the court and aired live on national television.
The journalists behind the stories – Nick McKenzie and Chris Masters – are multi award-winning investigative reporters known for their rigorous attention to detail. After the ruling, McKenzie tweeted one word: “Justice”.
In his closing remarks, barrister Arthur Moses SC, for Roberts-Smith, had accused them of jumping on rumors “like salmon jumping on a hook and published them as fact when they were fiction.”
Besanko said he would publish “lengthy” open court reasons for his findings and would provide a closed court version – some 50-pages long – to a more limited number of people due to national security reasons.
He said he would be asking the government to consider publishing the closed court report after redacting sensitive information.
Not only was this trial about the reputation of Roberts-Smith, the claims against him exposed the inner workings of Australian troops deployed to Afghanistan.
Serving and former elite troops were among those who gave evidence at the trial – some with their identities concealed but all giving rare insight into the culture on the battlefield.
Claims of violent acts committed by elite troops were echoed in the Brereton Report, a four-year investigation into the alleged war crimes in Afghanistan released in November 2020.
At the time, the Australian Defence Force Chief Gen. Angus Campbell said the report revealed a “warrior culture” among some members of Australia’s special forces who had served in Afghanistan.
Campbell “sincerely and unreservedly” apologized to the people of Afghanistan for the conduct alleged in the report. “It would have devastated the lives of Afghan families and communities, causing immeasurable pain and suffering,” he said.
This is a breaking news story. More to come.
