Five things you need to know about the Ben Roberts-Smith decision

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Federal Court judge Anthony Besanko has dismissed Ben Roberts-Smith’s claim that he was defamed in six articles in The Age, The Sydney Morning Herald and The Canberra Times. Here are five things you need to know about the decision.

Who won?

Besanko found the news outlets had established the substantial truth of the key allegations in the case: that Roberts-Smith was involved in the unlawful killing of unarmed Afghan prisoners. Technically speaking, the judge said the newspapers had proven the truth of the majority of the imputations that an ordinary reasonable reader might draw from the reports.

Ben Roberts-Smith pictured outside the Federal Court in Sydney during his defamation trial in 2022. Credit: Peter Rae

“The most serious allegations made … are that the applicant murdered or was complicit in or and responsible for the murder of Afghan males who were under control or containment,” Besanko said in his summary. “The respondents have established the substantial truth” of many, though not all, of those imputations, he said.

He also found the newspapers had proven that Roberts-Smith had bullied fellow soldiers.

The allegations that were found substantially true include:

• Roberts-Smith murdered an unarmed and defenceless Afghan civilian, Ali Jan, in September 2012 by kicking him off a cliff and procuring the soldiers under his command to shoot him.
• He broke the moral and legal rules of military engagement and is therefore a criminal.
• He disgraced his country Australia and the Australian army by his conduct as a member of the SAS in Afghanistan.
• He committed another murder on Easter Sunday, 2009, by pressuring a newly deployed and inexperienced SAS soldier to execute an elderly, unarmed Afghan in order to “blood the rookie”.
• He committed a third murder by machine-gunning a man with a prosthetic leg on the Easter Sunday mission.
• He was 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.
• As deputy commander of the 2009 SAS patrol on Easter Sunday, he acquiesced in the execution of an unarmed Afghan by a junior trooper in his patrol.
• He bullied a fellow soldier, Person 1.
• He bashed an unarmed Afghan in the face with his fists and in the stomach with his knee and in so doing alarmed two patrol commanders to the extent that they ordered him to back off.
• As patrol commander in 2012 he authorised the assault of an unarmed Afghan, who was being held in custody and posed no threat.
• He assaulted an unarmed Afghan in 2012.

Besanko found the newspapers had not established that Roberts-Smith committed an act of domestic violence against a former lover. However, in the context of the other allegations being proved, Besanko found the allegations did not further harm Roberts-Smith’s reputation.

“In light of my conclusions, each proceeding must be dismissed,” the judge said in his summary.

Journalists Nick McKenzie (left) and Chris Masters arrive at the court on Thursday.Credit: Janie Barrett

Who pays?

With the case’s legal costs estimated at $25 million, who is going to pick up the bill remains unresolved, but part of it could be paid by entities linked to Seven boss Kerry Stokes.

There are two financial aspects to the case: damages and the total costs of the litigation. The judge’s decision means Roberts-Smith is not entitled to any damages.

As for costs, in most cases in the Federal Court the losing party is ordered to pay part of the legal costs of the winner. The amounts can vary substantially, depending on the cost of the case, but it can amount to tens of thousands, hundreds of thousands or millions of dollars.

The Chief of the Defence Force, General Angus Campbell, in 2021 with billionaire media proprietor Kerry Stokes, who was then chairman of the Australian War Memorial.Credit: Alex Ellinghausen

Who pays what will be decided at a later date and might depend on what happens with any potential appeal. Both parties have to make submissions about the costs they incurred.

As Seven’s boss, Stokes has supported Roberts-Smith throughout the trial, and entities associated with him have funded his legal costs. Now, Nine, the owner of this masthead, has indicated it is considering seeking costs from “third parties”.

Does the judgment mean war crimes have, or have not, occurred?

The court has found the newspapers’ reports that Ben Roberts-Smith is a war criminal to be true on the balance of probabilities, but have not established them to the criminal level of proof, “beyond reasonable doubt”.

Beyond Roberts-Smith’s actions are a further series of war crimes allegations that were the subject of a 2020 report by the Inspector-General of the Australian Defence Force, James Gaynor, after an inquiry conducted by Major-General Paul Brereton, a judge of the NSW Supreme Court and Army Reserve officer. That report found credible information that Australian soldiers had unlawfully killed 39 Afghan prisoners and civilians between 2005 and 2016.

Ben Roberts-Smith wearing a crusader cross medallion in Afghanistan.

The Commonwealth government has set up a separate prosecutor, the Office of the Special Investigator, to investigate criminal war crimes cases, including against Roberts-Smith.

That office’s investigators sat through the defamation hearings to listen to evidence, and to protect the interests of the Commonwealth.

At Senate estimates in May 2021, the Director-General of the Office of the Special Investigator, Chris Moraitis, stated that the OSI, in co-operation with the Australian Federal Police, was investigating not just the potential criminal matters raised in the Brereton report but also any new allegations of criminal offences by members of the Australian Defence Force from 2005 to 2016 in Afghanistan.

However, the fall of Kabul may have impeded investigators’ collection of evidence, Moraitis said.

Why was part of the decision heard in a closed court, and why have parts of the decision been delayed?

Besanko said part of the court session was closed so he could state the reasons for his decision that relate to details from specific confidential military operations.

The case canvassed allegations which involved discussions of sensitive information and details of Australia’s decades-long war in Afghanistan, including issues of national security. The military witnesses in the case were given pseudonyms to protect their identities.

Besanko granted an eleventh-hour Commonwealth government application to delay releasing his full written judgment. Lawyers from the Commonwealth argued they wanted to ensure there was no inadvertent disclosure of national security information.

The judge closed the court after he’d finished delivering his summary reasons.

What options do the parties now have?

Legal teams for Roberts-Smith are likely to now examine grounds for an appeal by analysing the decision. Roberts-Smith has been given 42 days by the court to consider his options.

His barrister, Arthur Moses, SC, indicated that an appeal was at least on his legal team’s mind after asking for a longer than usual period to examine the findings and consider their options.

However, to successfully appeal against the decision, Roberts-Smith must convince three Federal Court judges that Besanko made an error of law and that the error was so significant that the decision should be overturned.

There have been longer-running defamation cases in Australia. The late Sydney lawyer John Marsden’s suit against the Seven Network ran from 1995 to 2003, reportedly ending in Marsden receiving a multimillion-dollar settlement.

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