Australia’s most decorated soldier Ben Roberts-Smith’s appeal of a defamation case that branded him a war criminal has been shot down by the High Court, spelling the end of a seven-year legal battle.
The former special forces soldier had appealed his 2023 Federal Court loss after he sued Nine Newspapers for defamation over reports claiming he was complicit in the murder of four unarmed civilians in Afghanistan.
Mr Roberts-Smith disputed Justice Anthony Besanko’s findings the allegations were substantially true, arguing that was not backed up by sufficient evidence for such serious claims.
On Thursday, Australia’s highest court refused the former soldier’s application to appeal the Federal Court findings.
It came on the same day the recipient of Australia’s highest two military honours – the Victoria Cross and Medal for Gallantry – was ordered to pay a lump sum of Nine’s legal costs for the unsuccessful Federal Court appeal.
The costs of the 110-day trial and the 10-day appeal are estimated to exceed $30 million.
Mr Roberts-Smith’s High Court bid had claimed the Full Court of the Federal Court made an error in assuming he had accepted some allegations which were not re-contested during the appeal.
The articles, published in 2018, included claims Mr Roberts-Smith kicked a handcuffed man off a cliff and ordered his execution, and machine-gunned another prisoner, taking his prosthetic leg home as a souvenir drinking vessel.
The alleged war criminal has maintained his innocence and has not been charged with criminal wrongdoing.
Justice Besanko found he machine-gunned an unarmed prisoner in the back during a 2009 raid on a compound codenamed Whiskey 108, taking the man’s prosthetic leg back to Australia to use for drinking beer.
Mr Roberts-Smith also stood silent while a rookie soldier was ordered to execute an elderly Afghan prisoner so he could be “blooded”.
Justice Besanko found one of the newspapers’ central claims – that Mr Roberts-Smith had kicked unarmed and handcuffed Ali Jan off a 10-metre cliff and then ensured he was shot – was true.
As evidence of his guilt, Mr Roberts-Smith attempted to cover up the unlawful killing at Darwan in September, 2012 by removing Mr Jan’s handcuffs and planting a radio alongside his lifeless body before he was photographed.
Mr Roberts-Smith then told fellow SAS soldiers who witnessed the incident to stick to an approved story Mr Jan was a spotter who they killed legitimately.
The appeal judges firmly rejected the former SAS corporal’s claim he did not know allegations of the Whiskey 108 murder were true.
When dismissing his appeal in May, the judges noted there were three eyewitnesses to the murder, which they said was a “problem” for Mr Roberts-Smith.
In a decision on legal costs on Thursday, the court contrasted Mr Roberts-Smith’s behaviour with that of a doctor with an honest but misguided perception of historical injustice regarding their professional incompetence.
“Ordering another soldier to execute an old man kneeling on the ground is not an ambiguous situation,” they wrote in their judgment.
“So too, we do not see how the finding that the appellant executed the man with the prosthetic leg with a burst of machine gun fire after frogmarching him to a place outside the compound is susceptible to any ambiguity which might make it plausible that the appellant did not know that what he was doing was murder.”
One of the authors of the 2018 reports, investigative journalist Nick McKenzie, celebrated the end of the road for Roberts-Smith’s case.
“Truth wins again,” he posted to X.
“Let’s never forget the Afghan victims.”
The Australian War Memorial said it would revisit the wording next to its collection dedicated to Mr Roberts-Smith’s Victoria Cross, in light of the High Court decision.
“Collection items relating to Ben Roberts-Smith VC MG, including his uniform, equipment and medals remain on display in the Memorial’s galleries,” a spokeswoman told AAP.
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