Former Australian SAS veteran loses defamation case over reports of Afghan execution

[June 01, 2023]  By Byron Kaye

SYDNEY (Reuters) -One of Australia's most decorated soldiers lost a defamation lawsuit against three newspapers that accused him of involvement in the murder of six Afghans while on deployment, a stunning end to a case that lifted the veil of secrecy over the elite SAS.

The newspapers proved four of the six murder accusations they levelled at former SAS corporal Ben Roberts-Smith, but Federal Court Judge Anthony Besanko said in Sydney, "In light of my conclusions, each (defamation) proceeding must be dismissed."

He was delivering a summary of his findings on Thursday.

Australian civil courts require a lower threshold to prove accusations than criminal courts do. Roberts-Smith has not been charged with any offences.

The ruling represents a win for media outlets seeking greater accountability for Australia's military, typically bound by confidentiality.

A 2020 report found credible evidence that members of Australia's Special Air Service Regiment (SAS) killed dozens of unarmed prisoners in the lengthy Afghan war. The report also prompted a rebuke from key trading partner China.

Roberts-Smith, 44, was seen as a national hero after winning several top military honours, including the Victoria Cross, for his actions during six tours of Afghanistan from 2006 to 2012.

He later carved out a post-military career as an in-demand public speaker and media executive. His portrait hangs in the Australian War Memorial.

But articles by the Sydney Morning Herald, the Age and the Canberra Times since 2018 suggested he went beyond the bounds of acceptable military engagement, including descriptions of brutal treatment of defenceless Afghan civilians.

The articles, citing other soldiers who said they were there, 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 sued the papers for portraying him as someone who "broke the moral and legal rules of military engagement".

He called the reports false and based on claims of failed soldiers who were jealous of his accolades, and sought unspecified damages.

The newspapers sought to defend their reports by proving the claims were true, and presented other soldiers and former soldiers as witnesses in court who corroborated them.

One of Australia's most decorated living soldiers on Thursday lost a defamation lawsuit against three newspapers which accused him of involvement in the murder of six Afghans during deployment to Afghanistan. Flora Bradley-Watson reports.

The strategy largely worked. The papers had said Roberts-Smith pressured a lower-ranking Australian soldier to execute an elderly, unarmed Afghan to "blood the rookie", said Judge Besanko, adding they proved that account true.

In another case, the papers said Roberts-Smith murdered an Afghan man who had a prosthetic leg and was then "so callous and inhumane that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer-drinking vessel", the judge said.

He said the papers proved that accusation was also true.

"It is a vindication for the many people in our newsrooms and our organisation who supported this really important public interest journalism," said James Chessell, managing editor of publishing at the newspapers' owner, Nine Entertainment Co Ltd.

"It is a vindication for the brave soldiers of the SAS who served their country with distinction and then had the courage to speak the truth about what happened," Chessell said outside the court.

Roberts-Smith's lawyer, Arthur Moses, told reporters, "We will consider the lengthy judgment that his honour has delivered and look at issues relating to an appeal." Roberts-Smith was not in court.

In response to questions on the decision, the Taliban, which now rules Afghanistan after fighting international troops for 20 years, said foreign forces had committed "uncountable crimes" during the war.

Bilal Karimi, a spokesperson for the Taliban administration, said the incidents involved in the Australian case were a "small part" of the many alleged crimes that took place, adding that they did not trust any court globally to follow them up.

Besanko said he would give reasons for his decision on Monday after the federal government sought a delay to allow its lawyers time to check against inadvertent disclosures of national security information.

"The road to accountability, truth and justice is a long one," said Fiona Nelson, director of legal advocacy at the Australian Centre for International Justice.

"This case is an important reminder that we need courageous public interest journalism to help us get there."

(Reporting by Byron Kaye; Additional reporting by Mohamad Yunus Yawar in Kabul; Editing by Michael Perry and Clarence Fernandez)

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