Benjamin Roberts-SmithVC,MG (born 1 November 1978) is an Australian former soldier[1] who, in a civil defamation trial in 2023 he initiated in the Federal Court of Australia, was found to have committed war crimes (including murder) in Afghanistan during 2009, 2010 and 2012.[2][3][4][5] An appeal to a Full Court of the Federal Court, comprising three judges, commenced on 5 February 2024.[6][7][8]
In 2017, Roberts-Smith's actions in Afghanistan came under scrutiny in light of an independent war crimes inquiry into "questions of unlawful conduct concerning (Australia's) Special Operations Task Group in Afghanistan".[12] In November 2018, the Australian Federal Police launched an investigation into Roberts-Smith over allegations he committed war crimes in Afghanistan.[13]
The civil trial commenced in June 2021 in the Federal Court in Sydney.[15] The media outlets mounted a defence which required them to prove the truth of their claims based on the civil standard of proof, on the balance of probabilities, applying the Briginshaw principle.[16] In June 2023, Justice Anthony Besanko dismissed Roberts-Smith's defamation case against the three publications, ruling that it was proven to the standard required in Australian defamation law that Roberts-Smith murdered four Afghans and had broken the rules of military engagement.[16][17][18]
After completing the Special Air Service Regiment (SASR) selection course in 2003, and the SASR reinforcement cycle, Roberts-Smith was initially posted to 3 Squadron at Campbell Barracks in Perth. He took part in operations off Fiji in 2004, and was part of personal security detachments in Iraq throughout 2005 and 2006. Roberts-Smith was deployed to Afghanistan on six occasions; the first two were in 2006 and 2007. After completing junior leadership training in 2009, he was posted to 2 Squadron as a patrol second-in-command (2IC), and later as a patrol commander. Roberts-Smith was a member of training and assistance teams throughout Southeast Asia. He returned to Afghanistan in 2009, 2010 and 2012.[21]
In 2011, Roberts-Smith noted that he - and the ADF - expected him to be able to continue to fight as a frontline patrol commander following the receipt of the Victoria Cross for Australia. He said that "[O]nce you reach patrol commander, that is the pinnacle for an SAS operator. You are now the man."[22] He left the full-time army in 2013 at age thirty-five with the rank of corporal, and served part-time with the Army Reserve until 2015.
In 2006, Roberts-Smith was awarded the Medal for Gallantry for his operations as a patrol scout and sniper in Afghanistan.[23]
He was presented with the VC by the Governor-General of Australia, Quentin Bryce, at a ceremony held at Campbell Barracks on 23 January 2011.[24][25] The decision to award the VC to Roberts-Smith was raised during defamation proceedings where it was revealed that several former and serving members of the SAS had questioned the decision.[26][27][28]
On 26 January 2014, Roberts-Smith was awarded the Commendation for Distinguished Service as part of the 2014 Australia Day Honours.[29] The award arose from a 2012 tour of Afghanistan, in which Roberts-Smith "distinguished himself as an outstanding junior leader on more than 50 high risk" operations.[30]
A 2014 painting of Roberts-Smith, Pistol Grip by Michael Zavros, hangs in the Australian War Memorial which commissioned it.[31] The National Portrait Gallery commissioned a photo by Julian Kingma of Roberts-Smith in 2018.[32] The uniform he wore in Afghanistan is also displayed in the War Memorial.[33] In 2023, Kim Beazley, Chair of the Australian War Memorial Council, acknowledged "the gravity of the decision in the Ben Roberts-Smith VC MG defamation case and its broader impact on all involved in the Australian community".[34] Careful consideration is being given to the additional content and context to be included in collection items on display.[34]
In October 2013, when Roberts-Smith announced that he was leaving the Army,[37] the University of Queensland offered him a scholarship to study a Master of Business Administration, with a view to establishing a program to support other soldiers in transitioning to a corporate career. Roberts-Smith graduated in December 2016 at age 38 and said "I joined the army at 18 so I hadn't gone to university for a Bachelor degree and I didn't have the base level of business knowledge because there were many things I just hadn't been exposed to."[38][39][40] Nevertheless, he was appointed deputy general manager of regional television network Seven Queensland in April 2015, and two months later promoted to general manager.[41][42] In April 2016, Roberts-Smith was also made general manager of Seven Brisbane following the resignation of Max Walters.[43][44]
While at Seven Queensland, Roberts-Smith was recorded expressing disdain for the media business, dislike of fellow Seven executives and incredulity that he was still running Seven Queensland despite being at the centre of a war crimes scandal. He also felt indebted to media mogul and Seven owner Kerry Stokes for financing his personal legal actions.[45] It was alleged in February 2022 during defamation proceedings that Roberts-Smith had employed a private investigator, John McLeod, to pose as a barman during a Seven Queensland work event in order to listen to staffers at the event and discern their opinions on Roberts-Smith.[46]
In April 2021, Roberts-Smith temporarily stepped down from Seven Queensland to focus on his defamation action against Nine Entertainment.[47] In June 2023, he resigned from Seven following the case's unsuccessful outcome.[48]
In October 2017, actions involving Roberts-Smith came under further scrutiny. One controversy concerned the killing of a person, who Roberts-Smith had claimed was a Taliban spotter, during a confrontation in May 2006 at Chora Pass. According to the journalist Chris Masters, two members of the patrol had witnessed a lone Afghan teenager approaching the patrol observation post, leaving shortly thereafter. Although the two operators had decided it was not necessary to engage the Afghan, Roberts-Smith and patrol 2IC Matthew Locke arrived on-scene and the pair "decided to hunt down and shoot dead the two 'enemy' after concluding they had spotted the patrol".[51]
The patrol report had identified only a single Afghan unarmed "spotter", but Roberts-Smith later said that two armed insurgents had approached the position in an oral account provided to the Australian War Memorial. When the inconsistency was raised, Roberts-Smith claimed to have remembered incorrectly.[52]
Following the publication of Masters' book No Front Line in October 2017, Fairfax Media's Nick McKenzie and the ABC's Dan Oakes covered the story, linking the case to an ongoing inquiry by the Inspector-General of the ADF into criminal misconduct on the battlefield by special forces; an inquiry that resulted in the Brereton Report. Responding to the coverage in an interview with The Australian, Roberts-Smith described the scrutiny as "un-Australian". Oakes wrote "It's not 'un-Australian' to investigate the actions of special forces in Afghanistan".[53]
In June 2018, a joint ABC–Fairfax investigation detailed an assault on the village of Darwan in September 2012 during which a handcuffed man was kicked off a cliff by an Australian special forces soldier nicknamed "Leonidas" after the famed Spartan king.[54][55][56] On 6 July 2018, Fairfax Media reported that Roberts-Smith was "one of a small number of soldiers subject to investigation by an inquiry looking into the actions of Australian special forces soldiers in Afghanistan".[57] In August 2018, Fairfax Media reported that Roberts-Smith bullied several of his fellow soldiers as well as a female companion's allegations that she was subjected to an act of domestic violence in Australia. Roberts-Smith denied these allegations.[58]
In June 2023, ABC reported that it has been alleged that Roberts-Smith directed another SASR soldier to kill an elderly imam during an August 2012 operation in Afghanistan. It has been alleged that this led to the man being dragged from a mosque and killed, despite him being unarmed and a prisoner of the Australians. This incident was among those which the Brereton Report recommended be considered by war crimes investigators.[59]
Investigation
In November 2018, the Australian Federal Police (AFP) announced that they "received a referral to investigate allegations of war crimes committed by Australian soldiers during the Afghanistan conflict".[13] The Federal Court of Australia declared in September 2020 that no charges against Roberts-Smith had been laid.[60] In April 2021, the AFP confirmed it was also conducting a probe into allegations that Roberts-Smith had destroyed or buried evidence directly related to the ongoing investigation.[61] The Commonwealth Director of Public Prosecutions later decided that the original AFP investigation could not lead to a prosecution, because of the likelihood that information it had received from the Brereton inquiry would be inadmissible, due to the Inspector-General's use of special coercive powers to question serving members of the ADF.[62] The abandonment of the probe led to the establishment of a new joint taskforce with personnel from the Office of the Special Investigator and a new team of federal police investigators to investigate the allegations.[62]
Defamation suit
In response to this series of articles, in January 2019 Roberts-Smith commenced defamation proceedings in the Federal Court against Fairfax Media (a subsidiary of Nine Entertainment) and two journalists, Nick McKenzie and Chris Masters, and a former journalist, David Wroe. In its truth defence, Fairfax defended its reporting as "substantially true", detailing a series of six unlawful killings alleged to have been carried out by Roberts-Smith in Afghanistan, including those in Darwan.[63]
Kerry Stokes' private investment company Australian Capital Equity (ACE) extended Roberts-Smith a line of credit, against which he drew $1.9million.[64] Stokes and another director of ACE are also on the board of the Australian War Memorial (AWM). Calls were made at the time for Stokes, as then AWM chairman, to stand down over his public and private support for soldiers accused of war crimes in Afghanistan.[65]
In August 2020, it was reported that legal experts had raised concerns about a personal relationship between Roberts-Smith and his defamation lawyer, saying it could constitute unprofessional conduct.[66]News Corp Australia published a photo of Roberts-Smith holding hands with the lawyer, who they reported was visiting him in his new apartment in Brisbane.[64] The lawyer conceded that it was "unwise to spend time with him socially".[67]
In the Federal Court, the Fairfax/Nine Entertainment lawyer Sandy Dawson claimed that Roberts-Smith and his wife had given inconsistent accounts about the status of their relationship during previous years.[68]
On 1 September 2020, Dawson told the Federal Court that the Australian Federal Police had information, including an eyewitness, that allegedly implicated Roberts-Smith in Afghanistan war crimes.[69] The defamation trial, expected to last for ten weeks, commenced in June 2021 in Sydney.[15]
The Federal Court established an online file in view of the public interest where documents were placed when considered publicly accessible.[70]
In April 2021, The Age published an article alleging that Roberts-Smith had attempted to cover up the alleged crimes by hiding incriminating images on a USB drive buried in his back yard, which has since been obtained by the Australian Federal Police.[71]
A colleague of Roberts-Smith, referred to as Person 16 (identity legally protected as part of proceedings), told the court in 2022 that Roberts-Smith had shot dead an unarmed Afghan teenage prisoner in 2012, and bragged about it.[72][73]
Several serving members of the SASR spoke during Roberts-Smith's defamation trial regarding bullying and threats made by Roberts-Smith during his service both within Australia and Afghanistan. "Person 1", a serving SASR member, conveyed that Roberts-Smith had stated to him he would "put a bullet in the back of his head" if he didn't improve his performance. Following this, Person 1 was advised by other members to report Roberts-Smith's threat which he did, leading to Roberts-Smith threatening him again, stating "If you’re going to make accusations, cunt, you’d better have some fucking proof." Reports of Roberts-Smith's bullying were also reiterated by Person 43 and Person 10, other serving members of the SASR.[74][75]
Fairfax Media’s defence against Roberts-Smith’s suit ended in early April 2022 after calling witnesses for eleven weeks.[76]
Judgment
On 1 June 2023, Justice Anthony Besanko dismissed the defamation case brought by Roberts-Smith. Besanko found that the newspapers on trial, The Sydney Morning Herald, The Age and The Canberra Times, had established substantial or contextual truth of many of their allegations, including that Roberts-Smith "broke the moral and legal rules of military engagement and is therefore a criminal”.[77][78] As a defamation suit is a civil proceeding, Besanko was required by the Evidence Act to assess the evidence using the civil standard of proof, the balance of probabilities, instead of the criminal standard of proof, beyond reasonable doubt.[77][79][80] Due to the gravity of the allegations,[81] Besanko followed the Briginshaw principle which required stronger evidence than would be necessary for a less serious matter.[16][82][83]
Besanko found that four murder allegations against Roberts-Smith had been proven.[18][84] Besanko found that it was substantially true that:
during the Whiskey 108 mission in 2009 Roberts-Smith committed murder "by machine gunning a man with a prosthetic leg"; Roberts-Smith later asked other soldiers to drink from the prosthetic leg.[17][85][86]
during the same Whiskey 108 mission Roberts-Smith committed murder "by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly, unarmed Afghan in order to 'blood the rookie'";[17][85][86] and
during the Darwan mission in September 2012, Roberts-Smith "murdered an unarmed and defenceless Afghan civilian, by kicking him off a cliff and procuring the soldiers under his command to shoot him";[17][85][86]
during the Chinartu mission in October 2012, Roberts-Smith gave the order to another soldier "to shoot an Afghan male who was under detention"; with instructions being given "to an NDS-Wakunish soldier who then shot the Afghan male in circumstances amounting to murder", rendering Roberts-Smith "complicit in and responsible for murder".[87][88]
It was also ruled that two allegations of murder at Syahchow and Fasil in 2012 were not proven.[17][78]
Besanko separately found that it was proven that:
in 2010 Roberts-Smith physically attacked an unarmed Afghan man until two patrol commanders ordered him to stop;[89]
in 2012, Roberts-Smith assaulted a second unarmed Afghan man and authorised the assault of a third unarmed Afghan man who was being held in custody and did not pose a threat;[89] and
Roberts-Smith engaged in a "campaign of bullying" and threatened violence against an Australian soldier.[17][89]
Meanwhile, it was ruled that allegations that Roberts-Smith committed domestic violence and threatened to report another soldier to the International Criminal Court had not been proven, but did not further harm Roberts-Smith’s reputation given the other substantially true allegations, thus establishing contextual truth.[78]
Judge Besanko also stated that Roberts-Smith was not a reliable witness due to having an obvious motive to lie. Besanko also stated that he believed that Roberts-Smith had threatened a soldier who gave testimony against him.[90]
On 15 June 2023, Roberts-Smith stated that he was proud of his actions in Afghanistan and would not be apologising.[91] Later in June, he accepted liability for payment of the legal costs of his failed defamation suit against the three newspapers from 17 March 2020.[92][6] One respondent to the case previously stated that approximately $30 million was spent on successfully defending it.[92] In November 2023, it was ruled that Roberts-Smith should pay approximately ninety-five percent of the costs incurred by Nine Entertainment from when he began proceedings against them in 2018.[93] The following month, it was reported that Kerry Stokes (Roberts-Smith's former employer and financial backer) would pay most of these costs to his commercial rival, Nine.[94][95]
Appeal
On 11 July 2023, Roberts-Smith filed an appeal against Justice Besanko's judgment to the Full Court of the Federal Court after being granted an extension.[6][7] Nine Entertainment said it would oppose the appeal.[6] In October, the Court ordered Roberts-Smith to pay almost $1 million in security for costs ahead of an appeal.[96][97]
Further controversy
In September 2024 it was reported that Roberts-Smith had attended a recent Australian Defence Force gala dinner to celebrate the sixtieth anniversary of the Special Air Service Regiment and that some who had served in the special forces found this inappropriate. The same report said that the Office of the Special Investigator could soon bring criminal charges against Roberts-Smith, including further alleged war crimes and other criminal matters.[98]
Personal life
Roberts-Smith met Emma Groom in 1998 at Holsworthy Barracks, Sydney. She came from a military family. On 6 December 2003, the couple married at the University of Western Australia.[99] Their twin daughters were born in 2010. Roberts-Smith was named 2013 Australian Father of the Year by The Shepherd Centre, a not-for-profit charitable organisation.[100] On retirement from the army in 2015, he moved to Queensland with his wife and daughters.[101] In December 2020, their divorce was finalised.[102][103][104]
In 2017–2018, Roberts-Smith allegedly had a six-month affair with an unnamed woman given the pseudonym "Person 17" in the defamation trial that he initiated. When Person 17 became pregnant, Roberts-Smith allegedly hired a private investigator to monitor Person 17 and confirm her attendance at an abortion clinic. Person 17 accused Roberts-Smith of punching her in the face after a dinner at Parliament House in 2018. Roberts-Smith denies ever striking her.[105] Person 17 also accused Roberts-Smith of coaching her on how to explain a black eye resulting from the alleged assault.[106]
In January 2022, Roberts-Smith was ordered to pay the legal costs of his ex-wife after unsuccessfully trying to sue her in the Federal Court over allegations that she accessed confidential emails.[107]
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↑ "Commendation for Distinguished Service"(PDF). Website of the Governor General of Australia. Australian Honours and Awards Secretariat. 26 January 2014. Archived from the original(PDF) on 27 January 2014. Retrieved 27 January 2014.
↑ Gould, Joel (Winter 2017). "When the war is over". The University of Queensland. Archived from the original on 13 March 2020. Retrieved 5 December 2020.
Pedersen, Peter (January 2012). "The falling leaves of Tizak". Wartime Magazine. Australian War Memorial. Archived from the original on 30 April 2013. Retrieved 5 June 2012. In this interview, he speaks at length publicly for the first time about the circumstances that led to the award.
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