SYDNEY — One of Australia’s most decorated soldiers lost a defamation lawsuit against three newspapers that accused him of involvement in the murder of six Afghans while on deployment, in a stunning end to a case that lifted the veil of secrecy over the elite SAS.
The newspapers proved four of the six murder allegations of which they accused former SAS corporal Ben Roberts-Smith, but “in light of my conclusions, each (defamation) proceeding must be dismissed,” said Federal Court Judge Anthony Besanko in Sydney on Thursday, in a summary of his findings.
Australian civil courts require a lower threshold to prove allegations than criminal courts do. Roberts-Smith has not been charged with any offenses.
The ruling marks a win for media outlets seeking greater accountability for Australia’s military, typically bound by confidentiality.
A 2020 report found credible evidence that members of Australia’s Special Air Service Regiment (SAS) killed dozens of unarmed prisoners in the lengthy Afghan war. The report also prompted a rebuke from key trading partner China.
Roberts-Smith, 44, was seen as a national hero after winning several top military honors, including the Victoria Cross, for his actions during six tours of Afghanistan from 2006 to 2012.
He later carved out a post-military career as an in-demand public speaker and media executive. His portrait hangs in the Australian War Memorial.
But articles by the Sydney Morning Herald, the Age and the Canberra Times since 2018 suggested he went beyond the bounds of acceptable military engagement, including descriptions of brutal treatment of defenseless Afghan civilians.
The articles, citing other soldiers who said they were there, said Roberts-Smith had shot dead an unarmed Afghan teenage spotter, and kicked a handcuffed man off a cliff before ordering him to be shot dead.
Roberts-Smith sued the papers for portraying him as someone who “broke the moral and legal rules of military engagement.” He called the reports false and based on claims of failed soldiers who were jealous of his accolades, and sought unspecified damages.
The newspapers sought to defend their reports by proving the claims were true, and presented other soldiers and former soldiers as witnesses in court who corroborated them.
The strategy largely worked. The papers had reported that Roberts-Smith pressured a lower-ranking Australian soldier to execute an elderly, unarmed Afghan to “blood the rookie,” said Judge Besanko, adding they proved that account true.
In another case, the papers reported that Roberts-Smith murdered an Afghan man who had a prosthetic leg and was then “so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel,” the judge said. He said the papers proved that allegation was also true.
“It is a vindication for the many people in our newsrooms and our organization who supported this really important public interest journalism,” said James Chessell, managing editor of publishing at the newspapers’ owner, Nine Entertainment Co Ltd .
“It is a vindication for the brave soldiers of the SAS who served their country with distinction and then had the courage to speak the truth about what happened,” Chessell said outside the court.
Roberts-Smith’s lawyer Arthur Moses told reporters that “we will consider the lengthy judgment that his honor has delivered and look at issues relating to an appeal.” Roberts-Smith was not present in court.
Besanko said he would give reasons for his decision on Monday after the federal government applied to delay the proceedings to give government lawyers time to check for national security information being inadvertentely divulged.
“The road to accountability, truth and justice is a long one,” said Fiona Nelson, director of legal Advocacy at the Australian Centre for International Justice. “This case is an important reminder that we need courageous public interest journalism to help us get there.” (Reporting by Byron Kaye Editing by Shri Navaratnam and Michael Perry)