Australian soldier loses defamation case over Afghan war crimes claim

Ben Roberts-Smith was suing newspapers over reports he was involved in six murders while serving in Afghanistan

Former Australian soldier Ben Roberts-Smith leaves the Federal Court of Australia in Sydney in June 2021 after an appearance related to his defamation case against three newspapers. Getty Images

One of Australia's most decorated living soldiers on Thursday lost a defamation case against three newspapers that accused him of involvement in the murder of six Afghans during service in Afghanistan.

The newspapers successfully established their reports that former special forces' member Ben Roberts-Smith was involved in execution and murder in Afghanistan were true, said Federal Court judge Anthony Besanko in Sydney.

The papers proved their allegations in relation to four of the murders for which they held Roberts-Smith responsible but "in light of my conclusions, each proceeding must be dismissed," Mr Besanko said in a summary of his findings.

Publication of his full reasons was delayed until Monday due to national security concerns.

Roberts-Smith, 44, a former corporal in the Special Air Services, served six tours in Afghanistan from 2006 to 2012 before carving out a post-military career as a public speaker and media executive.

He was awarded the Victoria Cross – Australia's highest military honour – for "conspicuous gallantry" while serving in Afghanistan.

But reports published in 2018 by The Age, The Sydney Morning Herald and The Canberra Times alleged that he exceeded the bounds of acceptable military engagement.

The articles, citing other soldiers who said they were present, 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's lawsuit called the reports false and based on the claims of failed soldiers who were jealous of his accolades. He had sought unspecified damages.

The newspapers defended their reports by proving the claims were true and presented other soldiers and former servicemen as witnesses in court for corroboration.

The judgment comes at a time of heightened sensitivity around Australia's military after a report in 2020 said there was credible evidence members of the special forces killed dozens of unarmed prisoners in Afghanistan.

No soldiers were named in the redacted report but about two dozen current and former Australian soldiers were referred for potential criminal prosecution.

Mr 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 divulged inadvertently.

Journalists Chris Masters, left, and Nick McKenzie talk to the media outside the Federal Court of Australia in Sydney after the verdict. AFP

The case is one of Australia's longest-running defamation trials, with 40 witnesses providing often harrowing evidence about the behaviour of Australia's special forces.

Australian media estimated the legal costs have run to US$16 million, making it one of the costliest defamation cases in the country's history.

Lawyers for the media indicated they would be seeking "indemnity costs against the applicant" at a later date.

Roberts-Smith's defence was partially bankrolled by the head of Seven West Media, a rival to the three newspapers.

He was photographed on holiday in Bali before the ruling and did not attend court.

With reporting from agencies.