Decorated former Australian Army soldier Ben Roberts-Smith has lost his landmark defamation case against three newspapers and three journalists in the federal court in Sydney.
Justice Anthony Besanko handed down the verdict on Thursday afternoon, in which he ruled that three newspapers - the Sydney Morning Herald, the Age and the Canberra Times - and journalists Nick McKenzie, Chris Masters and David Wroe had not defamed Mr Roberts-Smith in a series of articles published in 2018.
Justice Besanko read out a summary of each of the defamatory imputations alleged by Mr Roberts-Smith, and the defences which relied on the truth of the allegations which were mounted by the defendants. He found that the defendants had proved that some of the most serious allegations of war crimes were substantially true.
"In light of my conclusions, each proceeding must be dismissed," Justice Besanko said.
Mr Roberts-Smith was deployed to Afghanistan six times: in 2006, 2007, twice in 2009, and in 2010 and 2012. All Australian troops were , with the .
Why did Ben Roberts-Smith sue for defamation?
Mr Roberts-Smith is a former corporal with the elite SAS regiment. Australia's most decorated living soldier, the Afghanistan war veteran has been awarded Australia's highest military honour, the Victoria Cross, as well as Medal for Gallantry.
Mr Roberts-Smith sued the newspapers and journalists in federal court, alleging that articles made a series of defamatory imputations about him, including that they suggested he committed war crimes in Afghanistan between 2009 and 2012.
A press pack awaits the verdict outside the federal court in Sydney. Source: SBS News / Lucy Murray
The court case, which ended in July 2022, took 110 days and was dubbed the ‘trial of the century’ and a 'proxy war crimes trial'.
Is Ben Roberts-Smith guilty of war crimes?
Mr Roberts-Smith has not been charged with any criminal offences and maintains his innocence.
The case brought by Mr Roberts-Smith was a civil defamation trial not a criminal trial, and as such, could not result in any criminal findings or sentencing.
Justice Anthony Besanko did not find in favour of the newspapers on all of the imputations brought by Mr Roberts-Smith.
But he found the newspapers established "substantial truth" or "contextual truth" for many of the imputations.
Justice Besanko ruled all defamation proceedings should be dismissed, finding the media outlets had shown the most serious claims were supported by evidence, and the remainder would not have further damaged Mr Roberts-Smith's reputation
Substantial truth was established over reports Mr Roberts-Smith murdered an unarmed, defenceless Afghan man by kicking him off a cliff and ordering soldiers under his command to shoot him.
Imputations Mr Roberts-Smith committed murder by machine-gunning a man with a prosthetic leg were also found to be substantially true.
So too were reports he pressured an inexperienced trooper to execute an elderly Afghan man to "blood" the rookie, acquiesced to another junior soldier executing an unarmed Afghan man, and engaged in a bullying campaign against colleagues.
Remaining imputations that Mr Roberts-Smith committed an act of domestic violence were not established but were successfully defended by the media outlets arguing they did not further damage his reputation.
Mr Roberts-Smith has not been charged with any criminal offences and maintains his innocence.
'He was kicked off a cliff by Ben Roberts-Smith': Journalists highlight plight of victims
Following the verdict, The Age and Sydney Morning Herald journalist Nick McKenzie, a prominent defendant in the case, took to Twitter, posting just one word: "Justice."
Nine publisher James Chessell said the findings confirmed reports Mr Roberts-Smith breached the Geneva Convention in a critical step towards justice for the families of victims.
McKenzie, who penned several of the contested articles, said it was "small justice" for Mr Roberts-Smith's Afghan victims.
Journalists (left-to-right) Chris Masters, Nick McKenzie and Nine Newspapers managing director of publishing James Chessell, speak to media after the Ben Roberts-Smith trial at the Federal Court of Australia in Sydney on 1 June 2023. Source: AAP / Jane Dempster
"He has children who no longer have a father.
"He has a wife who no longer has a husband.
"He was kicked off a cliff by Ben Roberts-Smith."
Mr Roberts-Smith was spotted poolside in Bali on Wednesday in footage aired on the Nine Network.
"He came almost every day but he did not come to the day of judgment," McKenzie said.
"He's in Bali, doing whatever he's doing.
Ben Roberts-Smith was not in court for the verdict. Credit: Damon Cleary/PR IMAGE
Masters said the ruling would go down in the history of the news business as one of the great calls.
"They say in defamation there are few winners," he said.
"I'm glad to say I'm not standing here as a loser but I don't think it is true that anybody comes out from this feeling exalted."
The verdict was hailed as a “big and important win for journalism and press freedom in Australia” by the union representing media.
"It upholds the media’s important role in undertaking public interest investigations & in the public’s right to know," the Media, Entertainment and Arts Alliance's Media President Karen Percy wrote on Twitter.
Calls for more accountabilty and justice for Afghan victims
Mohib Iqbal, president of the Afghan National Council Australia, told SBS News the case had been "keenly followed among Afghans here in Australia and everywhere in the world".
"I think the first reaction to this type of verdict is that of a broader accountability of the international forces' presence in Afghanistan, and justice in that sense, particularly on the civilian casualties side," Mr Iqbal said.
"So it's welcome from that accountability and justice point of view.
"Afghans are very keenly watching this and hoping that this will bring that accountability to international troops, globally."
Mr Iqbal said the case highlighted the importance of the Australian government following through with compensation for families of civilian victims.
In 2020, a four-year investigation into alleged misconduct by Australian special forces in Afghanistan conducted by Major General Paul Brereton was handed down.
The Brereton Report detailed “credible” evidence of 39 unlawful killings of Afghan civilians or prisoners, and recommended that compensation be paid swiftly to restore "Australia’s standing".
"There's quite a number of people. They're looking forward to a resolution and, and that compensation that has already been accepted by the Australian government, and I don't think it has been delivered," Mr Iqbal said.
"So that's the other very important side, that justice to the victims and also compensation to the victims needs to be delivered."
Greens Senator for NSW, David Shoebridge, said it was a "tragic fact that private media companies, not any part of the federal government, have taken on the public task of telling the truth about Australia’s war record in Afghanistan".
"This is not justice for the families who lost loved ones or for the communities that have been brutalised by war crimes, but it takes us a step closer," he wrote on Twitter.
"The Albanese Labor government should urgently progress compensation for families of victims of alleged Afghanistan war crimes, one of the key outstanding recommendations of the Brereton Report."
Defence minister Richard Marles declined to comment when asked if he would consider stripping Mr Roberts-Smith of his service medals.
SBS News has contacted the federal government for comment.
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