Australia’s most decorated soldier was “complicit in and responsible for the murder” of three Afghan men on deployment, a judge has said, elaborating on his finding against the former Special Air Service (SAS) corporal in one of the country’s longest-running defamation trials.
Ben Roberts-Smith, holder of the Victoria Cross and other top military honours, was also “not an honest and reliable witness in … many areas” and a bully towards other Australian soldiers, Federal Court Judge Anthony Besanko said in his full judgement released on Monday.
Roberts-Smith, 44, had sued three Australian newspapers – The Sydney Morning Herald, The Age and The Canberra Times – for defamation after they reported he had murdered Afghans during multiple deployments to the country from 2006 to 2012.
But Besanko on Thursday threw out Roberts-Smith’s defamation case, ruling that the media outlets had proven substantial truth in their reporting, 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.
Besanko found the journalists also established the substantial truth of reports that in 2009 he had murdered a disabled Afghan man, and also ordered the execution of a man who had hidden himself in a tunnel in a bombed-out facility known as Whiskey 108.
Australian civil courts require a lower threshold to prove accusations than criminal courts do. Roberts-Smith has not been charged with any offences and has not commented since the ruling. He has since quit his job as a television executive.
Besanko delayed releasing reasons for his judgement until Monday to allow the Australian government time to ensure it did not inadvertently divulge national security secrets.
“I have found that the applicant [Roberts-Smith] was complicit in and responsible for the murder of EKIA56 … in 2009 and the murder of Ali Jan at Darwan on 11 September 2012 and the murder of the Afghan male at Chinartu on 12 October 2012,” Besanko said in his 736-page civil court judgement.
Roberts-Smith was accused by the newspapers of ordering a lower-ranking soldier to shoot dead an “older Afghan male”, identified in the case as EKIA56, to “blood the rookie”, he said.
In addition, Besanko said: “I find that in a compound in Chinartu … the applicant, through an interpreter ordered [an unnamed person] to shoot an Afghan male who was under detention.”
A soldier who was there “shot the Afghan male in circumstances amounting to murder. The applicant [Roberts-Smith] was complicit in and responsible for murder”, the judgement said.
Besanko found Roberts-Smith engaged in a “campaign of bullying” against another Australian soldier, including what he called a “death threat” when Roberts-Smith said, “If your performance doesn’t improve on our next patrol, you’re going to get a bullet in the back of the head.”
He also said Roberts-Smith was not a reliable witness and had reasons to lie.
“The applicant has motives to lie, being a financial motive to support his claim for damages in these proceedings, a motive to restore his reputation which he contends has been destroyed by the publication of the articles and significantly, a motive to resist findings against him which may affect whether further action is taken against him,” Besanko wrote.
“I find that the applicant was not an honest and reliable witness in … many areas,” he added.
Roberts-Smith was seen as a national hero, with his portrait hanging in the Australian War Memorial, for his actions during six tours of Afghanistan and military citations. A 2020 report found credible evidence that members of the SAS Regiment killed dozens of unarmed prisoners in the lengthy Afghan war. Only one soldier has been charged.