After a marathon legal battle spanning seven years, disgraced special forces veteran Ben Roberts-Smith has only hours to wait to learn whether he has cleared his name of war crime allegations.
The Victoria Cross recipient sued Nine newspapers and journalists Nick McKenzie and Chris Masters for defamation over their reports in 2018 which claimed he had committed war crimes.
But Justice Anthony Besanko found the claims that Roberts-Smith was responsible for the murder of four unarmed civilians when deployed in Afghanistan were substantially true.
In the bruising decision delivered in 2023, Justice Besanko ruled the former SAS corporal machine-gunned a man with a prosthetic leg – which he then encouraged soldiers to use as a drinking vessel.
On the same day in 2009, Roberts-Smith is also said to have ordered the execution of an elderly prisoner to “blood the rookie” during a raid on a compound known as Whiskey 108.
The judge found Roberts-Smith kicked a handcuffed prisoner off a cliff in the village of Darwan before dragging him to a creek and ordering his execution on September 11, 2012.
He also determined the former soldier had ordered another prisoner be shot and killed after a weapons cache was discovered in the village of Cinartu.
Justice Besanko found the allegations – as well as claims Roberts-Smith had engaged in a campaign of bullying against a fellow Australian soldier – were proven on the balance of probabilities.
Roberts-Smith launched an appeal against findings, which was heard in the Federal Court over 10 days in February 2024.
More than a year on, three justices will hand down their decision on Friday morning.
If Roberts-Smith is unsuccessful, only the High Court could overturn the war criminal findings.
The 46-year-old steadfastly denies any wrongdoing and has not been criminally charged.
If his appeal is dismissed, it could clear a path for a criminal investigation by the Australian Federal Police and the Office of the Special Investigator.
Roberts-Smith could be forced to pay out tens of millions of dollars over the legal saga after the cost of the defamation proceedings was tipped to exceed $25 million back in 2023.
Taking into account the subsequent appeal and interlocutory issues, the final bill could be far higher.
On Friday, the Full Court will also rule on Roberts-Smith’s push to reopen the appeal over a secret recording he claims reveals an alleged miscarriage of justice.
In a taped call, McKenzie can be heard telling Roberts-Smith’s ex-lover that two crucial witnesses were “actively briefing us on his legal strategy” during the initial trial.
But the journalist has denied claims he obtained privileged information while investigating Roberts-Smith, whose reputation was tarnished by his reports in 2018.
Roberts-Smith rose to prominence in 2011 after he was awarded Australia’s highest military honour, the Victoria Cross, for single-handedly taking out machine-gun posts to protect pinned-down colleagues in Afghanistan.
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