Australia’s most decorated living war veteran Ben Roberts-Smith on Friday lost his appeal of a civil court ruling that blamed him for unlawfully killing four Afghans while he served in Afghanistan.
A federal court unanimously rejected his appeal of a judge’s ruling in 2023 that Mr Roberts-Smith was not defamed by newspaper articles published in 2018 that accused him of a range of war crimes.
Justice Anthony Besanko had ruled that the accusations were substantially true to a civil standard and Mr Roberts-Smith was responsible for four of the six unlawful deaths he had been accused of.
Mr Roberts-Smith has never faced criminal charges, which must be proven to the higher standard of beyond reasonable doubt.
He was not in the Sydney court on Friday to hear the ruling, and his lawyers refused to comment.
Mr Roberts-Smith said he would immediately seek to appeal the decision in the High Court, his final appeal option.
"I continue to maintain my innocence and deny these egregious, spiteful allegations," he said in a statement. "Sunlight is said to be the best disinfectant, and I believe one day soon the truth will prevail.”
Mr Roberts-Smith, 46, is a former Special Air Service Regiment corporal who was awarded the Victoria Cross and the Medal for Gallantry for his service in Afghanistan. Around 39,000 Australian soldiers served in Afghanistan and 41 were killed.
His SAS colleagues are among those calling for him to become the first of Australia’s Victoria Cross winners to be stripped of the highest award for gallantry in battle.
Mr Roberts-Smith has been financially supported by Australian billionaire Kerry Stokes whose media business Seven West Media is a rival of Nine Entertainment that published the articles that Mr Roberts-Smith argued defamed him.
Tory Maguire, an executive of Nine Entertainment, welcomed the ruling as an "emphatic win."
"Today is also a great day for investigative journalism and underscores why it remains highly valued by the Australian people," Mr Maguire said.
Reporter Nick McKenzie, who was personally sued, said Mr Roberts-Smith must be held accountable before the criminal justice system.
Only one Australian veteran of the Afghanistan campaign has been charged with a war crime so far. Former Special Air Service Regiment soldier Oliver Schulz has been charged with murdering an unarmed Afghan, Dad Mohammad, in May 2012 by shooting him three time as the young man lay on his back in long grass in Uruzgan province.
Mr Schulz was charged in March 2023. He has pleaded not guilty but has yet to stand trial. He is currently taking part in a committal hearing that will decide whether prosecutors have sufficient evidence to warrant a jury trial.
An Australian military report released in 2020 found evidence that Australian troops unlawfully killed 39 Afghan prisoners and civilians. The report recommended 19 current and former soldiers face criminal investigation. It's not clear whether Mr Roberts-Smith was one of them.
Police are working with the Office of the Special Investigator, an Australian investigation agency established in 2021, to build cases against elite SAS and Commando Regiments troops who served in Afghanistan between 2005 and 2016.
The Australian Special Air Service Association, which advocates for veterans, has called for the government to establish a time limit for the Office of the Special Investigator rather than allow the allegations to drag on for decades.
"The whole process of dealing with these allegations needs to be completed at best speed," the association's chairman Martin Hamilton-Smith said.
The single criminal charge laid so far suggested that evidence behind many allegations was not credible, he said.
Defense minister Richard Marles, who is acting prime minister in Anthony Albanese's absence, did not immediately respond on Friday to a request for comment.
Rights activists have noted that the only Australian to be jailed in relation to war crimes in Afghanistan is whistleblower David McBride.
The former army lawyer was sentenced a year ago to almost six years in prison for leaking to the media classified information that exposed allegations of Australian war crimes.
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