Judge rules Australian elite soldier killed Afghans as suit fails

Highly decorated veteran Ben Roberts-Smith had sued for defamation after newspapers reported he had murdered civilians in Afghanistan.

An Australian court has found that Ben Roberts-Smith, who was awarded the Victoria Cross for his bravery, probably killed unarmed civilians in Afghanistan as three newspapers reported in 2018.

Roberts-Smith, a former soldier with the elite Special Air Services Regiment (SASR), sued the Sydney Morning Herald, The Age and Canberra Times for defamation after they reported he had murdered Afghans during multiple deployments to the country.

He claimed the publications had undermined his reputation and made him out to be a man who “broke the moral and legal rules of military engagement” and “disgraced his country and the Australian army”.

In a summary judgement read out in Sydney on Thursday, Judge Anthony Besanko said that on the balance of probabilities – the evidential standard for a civil trial – “the respondents had established the substantial truth” of several of the allegations, 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.

The case transfixed Australia through 110 days of hearings that were delayed by the COVID-19 pandemic and ended with closing arguments in July 2022.

Some 40 witnesses gave evidence, including serving and former soldiers, some of whom Roberts-Smith accused of jealousy and lying.

While Besanko noted the case was in the “public interest”, the release of the full judgement was delayed until Monday after the government intervened to prevent its release on national security grounds.

The judge found that Roberts-Smith had also bullied fellow soldiers, but said other allegations of wrongdoing were not proven, including that he was complicit in two other murders in Afghanistan in 2012 and that he attacked his lover.

Roberts-Smith was not in court for the judgement.

His lawyers indicated they might appeal.