The judge who dismissed Ben Roberts-Smith’s defamation action will not decide whether criminal investigators probing war crimes allegations against the decorated veteran should have access to sensitive information heard in closed court during the defamation trial.
Justice Anthony Besanko has recused himself from deciding whether investigators from the government’s Office of the Special Investigator (OSI) should be allowed to access information tendered in closed court, over concerns of a potential perception of bias.
“I have made a number of serious findings of fact and credit against the applicant,” Besanko ruled on Friday in the federal court.
“An ordinary, right-thinking member of the community would consider (strongly) that such matters should be the subject of a criminal investigation. That is enough to give rise to apprehended bias.”
In June, Besanko dismissed in its entirety Roberts-Smith’s defamation action against the Age, the Sydney Morning Herald and the Canberra Times.
Roberts-Smith, Australia’s most decorated Afghanistan veteran and a recipient of the Victoria Cross, alleged a series of 2018 articles had falsely portrayed him as a criminal who “broke the moral and legal rules of military engagement” and “disgraced” his country and its army. He denied all wrongdoing and said the allegations against him were motivated by spite and jealousy.
But Besanko found the newspapers had proven to a civil standard – on the balance of probabilities – that Roberts-Smith was complicit in the murder of four unarmed prisoners in Afghanistan, including kicking a handcuffed prisoner off a cliff before ordering him shot dead.
The judge also found Roberts-Smith ordered subordinate soldiers under his command to murder civilians, bullied comrades, intimidated other soldiers he thought might testify against him, and threatened a woman with whom he was having an affair.
In his 700-page judgment, Besanko said Roberts-Smith “has no reputation capable of being further harmed” because of the gravity of the offences he had found proved, and said “I have difficulty accepting [Roberts-Smith’s] evidence on any disputed issue”.
Roberts-Smith has lodged an appeal against Besanko’s decision in the defamation case, to be heard by the full bench of the federal court in February.
Following the judgment, after a 110-day trial which spanned two years and more than 40 witnesses, the OSI sought access to the defamation case’s sensitive court file, which includes thousands of classified documents and photographs, the identities of anonymised SAS witnesses, and transcripts of evidence given in closed court sessions of the trial, including by Roberts-Smith.
In an affidavit before the court, the OSI’s director of investigations, Ross Barnett, said: “there is an overlap between the subject matter of the investigations and the subject matter of the defamation proceedings”.
Lawyers for Roberts-Smith requested Besanko disqualify himself from making the decision about whether OSI investigators should have access to the documents. They did not argue that the judge was biased, but that he might appear that way to a hypothetical “fair and reasonable observer”, having presided over the defamation trial and delivered judgment against Roberts-Smith.
Lawyers for the commonwealth government argued Besanko could and should determine access to the documents sought by the investigators.
The judge on Friday chose to recuse himself, ordering that the OSI’s request for access to documents “be referred to another judge for hearing and determination”.
A joint Australian federal police/OSI taskforce – Operation Emerald – is actively investigating allegations of war crimes against Roberts-Smith, including allegations of two murders in which Roberts-Smith was complicit at a village called Kakarak in 2009, and one allegation of murder, in which Roberts-Smith kicked a handcuffed civilian off a cliff before ordering him shot dead, in the village of Darwan in 2012.
Summarising an affidavit from the OSI, Besanko wrote in his judgment Friday: “Criminal offences of the kind being investigated are extremely grave and their thorough investigation is of national and international importance”.
