The man who wasn't there: Ben Roberts-Smith misses his day of ...
In the end, the attention was on the man who wasn’t there.
All two metres of Ben Roberts-Smith was glaringly absent from the packed, anxious room in Sydney’s federal court building, as a judge quietly explained that the man once revered as the most famous soldier of his generation was, on the balance of probabilities, a murderer who callously killed unarmed civilians while serving in Australia’s military in Afghanistan.
As the judgment came down, the Victoria Cross winner was far away from his reckoning, on the Indonesian resort island of Bali.
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Roberts-Smith had sued three Australian newspapers – the Age, the Sydney Morning Herald, and the Canberra Times – for defamation, alleging a series of stories they published in 2018 had falsely portrayed him as a murderer and a war criminal, a man “who broke the moral and legal rules of military engagement” and “disgraced” his country and its military.
The newspapers defended their reporting as true.
On Thursday Roberts-Smith lost resoundingly. His case was uniformly dismissed. And with that dismissal will now likely come a legal bill somewhere in the order of $35m.
Almost defiantly, Roberts-Smith attended every day of this trial that he brought to court, demanding his once-glittering reputation be restored. But on this day all that was seen of him was a newspaper picture of him relaxing on that island resort.
In the quiet surrounds of Courtroom One, a decade and half a world removed from the violence wrought in Afghan villages, Justice Anthony Besanko ruled that the newspapers had proven many elements of their truth defence and that Roberts-Smith had been proven to be a murderer and a war criminal.
In a village called Darwan in 2012, Roberts-Smith took a handcuffed prisoner named Ali Jan and marched him to the edge of a cliff. He walked away from Ali Jan before turning and striding towards him, kicking him in the chest and sending him falling backwards off the precipice.
Ali Jan landed in a dry creek bed below, alive but badly injured, having smashed his face on the cliff as he fell. Roberts-Smith and a comrade walked down a footpath to the injured man. Roberts-Smith ordered his subordinate to shoot him dead. And so it was done.
Two further murders at a bombed-out compound known as Whiskey 108 in 2009 were also found proved.
Two men – one elderly, the other disabled and with a prosthetic leg – were found hiding, unarmed in a secret tunnel and taken prisoner. Roberts-Smith ordered the old man shot. He executed the disabled man, throwing him to the ground and machine-gunning him to death.
The man’s leg was kept as a souvenir by another soldier and used by Australian SAS troops as a macabre celebratory drinking vessel at their on-base bar in southern Afghanistan, the Fat Ladies Arms.
Besanko also found that the newspapers had, on the balance of probabilities, proven another imputation that Roberts-Smith was a “criminal” who “broke the moral and legal rules of military engagement” over an incident at Chenartu in 2012, which resulted in the execution of an Afghan man who was being held prisoner.
While two other allegations of murder the newspapers had raised to support their case were not proven, they were not necessary for their successful truth defence.
As for an allegation of domestic violence allegedly committed by Roberts-Smith in 2018 against a woman with whom he was having an affair, the judge found this was not proved. But he ruled it could be defended as “contextually true” – it caused no further harm to Roberts-Smith’s reputation – because of the gravity of the allegations the newspapers had already proven.
Besanko’s summary of his judgment – the judge’s full reasons will be published in coming days – lacked the drama and pathos of the trial that has seized public attention across Australia, and brought with it a national reckoning of the country’s mission in Afghanistan.
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His decision was measured, and legalistic, in contrast to the extremes of the trial he had heard.
More than 100 days of trial heard extraordinary evidence, allegations of “exhibition executions” and “kill counts”, and of “blooding” rituals, where junior soldiers were coerced by their superiors into killing unarmed civilians.
Dramatically, three SAS soldiers accused of murder on separate missions refused in court to answer questions about what they did in Afghanistan, objecting on the grounds that any truthful answer they gave would be self-incriminatory.
A tense courtroom exhalesIn Court One on Thursday, as the first ruling came down that an allegation of murder was proven, the two journalists at the centre of the case, Nick McKenzie and Chris Masters, audibly exhaled.
The extraordinary tension in the courtroom, which had built to an almost unbearable point, was immediately, palpably punctured. The air appeared almost to rush out the room. Roberts-Smith’s lawyers sat at the bar table, their shoulders noticeably sagged.
Throughout the case, the newspapers’ legal team had maintained that if they could prove one murder, they would have won, they would have proven that a man lionised as the living embodiment of Australia’s Anzac legend was in fact, nothing of the sort: he was a war criminal.
The judgment quietly unfurled further, more comprehensively in favour of the newspapers, than even they had dared to hope.
Roberts-Smith has avenues of appeal through the federal court. But it remains to be seen, in the face of such an annihilation, whether he chooses to exercise those.
The VC recipient was nowhere to be seen at the courthouse for his very public day of reckoning.
In his place stood the journalists who accused him.
“It’s a day of justice,” McKenzie said, “some small justice for the Afghan victims of Ben Roberts-Smith… [and] for those brave men of the SAS who stood up and told the truth about who Ben Roberts-Smith is: a war criminal, a bully, and a liar.”
