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Disgraced former soldier Ben Roberts-Smith gave false evidence in his defamation case, arranged for threatening letters to be sent to a former comrade who would later give evidence against him and made “unusual” arrangements to pay the legal fees of supportive witnesses, said the judge who dismissed his multimillion-dollar lawsuit.
Justice Anthony Besanko also described Roberts-Smith as “not an honest and reliable witness in … many areas”.
Ben Roberts-Smith leaves the Federal Court in Sydney in 2021.Credit: Dylan Coker
In a landmark decision on Thursday, Besanko found The Age, The Sydney Morning Herald and The Canberra Times had proven Roberts-Smith was a war criminal who unlawfully killed four unarmed Afghan prisoners and assaulted others on deployments between 2009 and 2012. Besanko also found the Victoria Cross recipient had bullied a fellow soldier.
Besanko released the full reasons for his decision on Monday, after publishing a summary of his lengthy judgment on Thursday. The Commonwealth applied successfully for the release of the full judgment to be delayed to allow time for it to consider whether national security information had inadvertently been disclosed.
Besanko did not find the news outlets had proven the former Special Air Service corporal committed an act of domestic violence against a lover, but in light of other proven allegations, Besanko found that allegation did not further harm Roberts-Smith’s reputation and his case should be dismissed.
Journalists Nick McKenzie and Chris Masters address the media after Ben Roberts-Smith lost his defamation case.Credit: James Brickwood
In his judgment on Monday, Besanko said the “combined effect” of evidence of current and former SAS soldiers who implicated Roberts-Smith in the execution of two Afghan prisoners at the Whiskey 108 compound on Easter Sunday, 2009, “is … powerful”.
There was “no evidence of a plausible motive to lie or collusion” between the witnesses, Besanko said, and they “were independent, had no interest in the result and were aware of the significance of giving evidence. Furthermore, they were in a position to observe the events about which they gave evidence”.
On the other hand, Roberts-Smith “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”.
He also said Roberts-Smith arranged, through a private eye, to have threatening letters sent to one of the newspapers’ witnesses, a serving soldier dubbed Person 18.
“Clearly this conclusion reflects adversely on the credit of the applicant [Roberts-Smith],” he said.
Besanko found Roberts-Smith came to an “unusual” arrangement to pay for the legal fees of three of his own SAS witnesses, Persons 5, 11 and 35, both in connection with the defamation proceedings and an inquiry by the Inspector-General of the Defence Force.
“I do not consider that any of them were completely frank and forthcoming about their knowledge concerning the payment of their legal fees and that is a matter that affects their credit,” Besanko said.
“The invoices indicate that the value of the legal work done for Person 11 is approximately $125,000; approximately $65,000 is for legal work done for Person 5; and approximately $86,000 is for legal work done for Person 35.
“I find that [Roberts-Smith] … made the arrangements because he considered that these witnesses, among others, support his version of events. He was and is no doubt alive to the fact that whoever is paying, the witnesses will feel less inclined to change their mind and refuse to cooperate or to change an account previously given in circumstances in which the applicant has arranged for the payment of their legal fees.”
Roberts-Smith was not in Sydney to hear the judgment summary being delivered on Thursday. His barrister, Arthur Moses, SC, asked the court to extend the usual 28-day period for filing an appeal to 42 days.
The war veteran’s defamation case was launched in 2018 against The Age and The Sydney Morning Herald, owned by Nine, and The Canberra Times, now under separate ownership, and the trial concluded in July last year after 110 days, 41 witnesses and more than $25 million in legal costs.
Roberts-Smith will be ordered to pay the newspapers’ costs as the unsuccessful party to the litigation. However, the media outlets have raised the prospect of seeking a third-party costs order against Roberts-Smith’s former employer, Seven West Media chairman Kerry Stokes, who bankrolled the lawsuit using private funds.
Nicholas Owens, SC, acting for the news outlets, told the court on Thursday: “We do anticipate making an application for indemnity costs, at least against the applicant [Roberts-Smith], and also a third-party costs order, possibly on an indemnity basis as well.”
Indemnity costs cover a higher proportion of a successful party’s legal bill than a standard costs order.
Roberts-Smith had alleged the newspapers accused him of being a war criminal who was complicit in the unlawful execution of three unarmed Afghan prisoners over two days.
Besanko found the newspapers had proved to the civil standard – the balance of probabilities – that those claims were substantially true. In a criminal trial, the standard of proof is beyond reasonable doubt.
The newspapers established that Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in Darwan on September 11, 2012, before procuring a soldier under his command, dubbed Person 11, to shoot the villager.
Besanko said in his full judgment that Roberts-Smith “falsely reported that Ali Jan was a [Taliban] spotter who had been engaged” in combat in a cornfield but he had ”murdered Ali Jan”.
He had then “aided, abetted, counselled or procured Person 11 in the murder of Ali Jan”, Besanko said.
The news outlets also established that Roberts-Smith was involved in two murders during an earlier mission on Easter Sunday, 2009, after two Afghan men were discovered in a tunnel in a compound dubbed Whiskey 108.
Besanko found that Roberts-Smith killed one of the men himself and directed a “rookie” soldier, Person 4, to kill the second man as a form of “blooding” or initiation.
The judge also found the news outlets have proven a fourth murder, which did not appear in the news reports but was part of an extensive truth defence. This killing related to directions Roberts-Smith gave via an interpreter for an unarmed Afghan man to be shot by a member of the Afghan Partner Force in 2012.
Besanko found that two other murders, which did not form part of the news stories but appeared in the newspapers’ defence, were not established.
The judge made clear that “there is no doubt that a court is not bound to accept the case of one or other of the parties” and “it may reject the case of both parties”.
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