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

Nine Entertainment Holdings

01/06/2023 08:26

(Adds context in 4th graf and reax)
    By Byron Kaye
       SYDNEY, June 1 (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, in a stunning end to a case that
lifted the veil of secrecy over the elite SAS.
    The newspapers proved four of the six murder allegations of
which they accused former SAS corporal Ben Roberts-Smith, but
"in light of my conclusions, each (defamation) proceeding must
be dismissed," said Federal Court Judge Anthony Besanko in
Sydney on Thursday, in a summary of his findings.
    Australian civil courts require a lower threshold to prove
allegations than criminal courts do. Roberts-Smith has not been
charged with any offences.
        The ruling marks 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.
    The strategy largely worked. The papers had reported that
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 reported that 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 allegation 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
 NEC.AX .
    "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 that "we
will consider the lengthy judgment that his honour has delivered
and look at issues relating to an appeal". Roberts-Smith was not
present in court.
        Besanko said he would give reasons for his decision on
Monday after the federal government applied to delay the
proceedings to give government lawyers time to check for
national security information being inadvertentely divulged.
    "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
Editing by Shri Navaratnam and Michael Perry)
 ((byron.kaye@thomsonreuters.com; +612 9171 7541; @byronkaye;))