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Australia’s most-decorated living soldier Ben Roberts-Smith, has lost an appeal against a landmark defamation judgement which found he committed war crimes.<\/p>\n
A judge in 2023 ruled that news articles alleging the Victoria Cross recipient had murdered four unarmed Afghans were true, but Mr Roberts-Smith had argued the judge made legal errors.<\/p>\n
The civil trial was the first time in history any court has assessed claims of war crimes by Australian forces.<\/p>\n
A panel of three Federal Court judges on Friday unanimously upheld the original judgement, though Mr Roberts-Smith has said he will appeal the decision to the High Court of Australia “immediately”.<\/p>\n<\/div>\n
“I continue to maintain my innocence and deny these egregious spiteful allegations,” he said in a statement.<\/p>\n
Mr Roberts-Smith, who left the defence force in 2013, has not been charged over any of the claims in a criminal court, where there is a higher burden of proof.<\/p>\n
The former special forces corporal sued three Australian newspapers over a series of articles alleging serious misconduct while he was deployed in Afghanistan between 2009 and 2012 as part of a US-led military coalition.<\/p>\n
At the time the articles were published in 2018, Mr Roberts-Smith was considered a national hero, having been awarded Australia’s highest military honour for single-handedly overpowering Taliban fighters attacking his Special Air Service (SAS) platoon.<\/p>\n
The 46-year-old argued the alleged killings occurred legally during combat or did not happen at all, claiming the papers ruined his life with their reports.<\/p>\n
His defamation case – which some have dubbed “the trial of the century” in Australia – lasted over 120 days and is now rumoured to have cost up to A$35m ($22.5m; \u00a316.9m).<\/p>\n<\/div>\n
In June 2023 Federal Court Justice Antony Besanko threw out the case against The Age, The Sydney Morning Herald, and The Canberra Times, ruling it was “substantially true” that Mr Roberts-Smith had murdered unarmed Afghan prisoners and civilians and bullied fellow soldiers.<\/p>\n
He also found that Mr Roberts-Smith lied to cover up his misconduct and threatened witnesses.<\/p>\n
Additional allegations that he had punched his lover, threatened a peer, and committed two other murders were not proven to the “balance of probabilities” standard required in civil cases.<\/p>\n
The “heart” of the appeal case was that Justice Besanko didn’t given enough weight to Mr Roberts-Smith’s presumption of innocence, his barrister Bret Walker, SC said.<\/p>\n
There is a legal principle requiring judges to proceed carefully when dealing with civil cases that involve serious allegations and in making findings which carry grave consequences.<\/p>\n
Mr Walker argued that meant the evidence presented by the newspapers fell short of the standard required.<\/p>\n
Months after the appeal case had closed, Mr Roberts-Smith’s legal team earlier this year sought to reopen it, alleging misconduct by one of the reporters at the centre of the case.<\/p>\n
They argued there was a miscarriage of justice because Nick McKenzie, one of the journalists who wrote the articles at the centre of the case, allegedly unlawfully obtained details about Mr Roberts-Smith’s legal strategy.<\/p>\n
The legal team pointed to a leaked phone call between Mr McKenzie and a witness – which The Age, The Sydney Morning Herald, and The Canberra Times said may have been recorded illegally.<\/p>\n
But on Friday, the trio of judges rejected that argument too.<\/p>\n
They said “the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men”.<\/p>\n
“To the extent that we have discerned error in the reasons of the primary judge, the errors were inconsequential,” they added.<\/p>\n
They also ordered Mr Roberts-Smith to pay the newspapers’ legal costs.<\/p>\n
In a statement, Mr McKenzie called the ruling an “emphatic win”.<\/p>\n
He thanked the SAS soldiers who “fought for the Australian public to learn the truth”, and paid tribute to the Afghan “victims of [Mr] Roberts-Smith”.<\/p>\n
“It should not be left to journalists and brave soldiers to stand up to a war criminal,” he said. “Australian authorities must hold Ben Roberts-Smith accountable before our criminal justice system.”<\/p>\n<\/div>\n