Ben Roberts-Smith has launched an appeal after he lost his war crimes defamation trial in the federal court.
Justice Anthony Besanko found in June that three newspapers had proved Roberts-Smith had, on the balance of probabilities, murdered unarmed civilians while serving in the Australian military in Afghanistan.
The judge found Roberts-Smith, a recipient of the Victoria Cross and Australia’s most decorated living soldier, was complicit in four murders and was “not an honest and reliable witness” who had “motives to lie” to the court.
The Age, the Sydney Morning Herald and the Canberra Times published a series of reports in 2018 that alleged Roberts-Smith was involved in murdering civilians, including kicking a handcuffed man off a cliff, ordering subordinate soldiers to kill prisoners, and placing weapons on the bodies of murdered people in order to fake combat deaths.
Roberts-Smith sued for defamation. Judgment in the year-long trial was handed down in early June dismissing Roberts-Smith’s claim.
Roberts-Smith filed his appeal on Tuesday afternoon, two days before the deadline to appeal expired. His appeal will be heard before the full bench of the federal court at a date to be fixed. It is likely to be next year before the appeal is heard, Guardian Australia understands.
Roberts-Smith was awarded the Victoria Cross for his actions in the battle of Tizak, in southern Afghanistan, in 2010.
Roberts-Smith was also appointed chair of the Australia Day Council and recognised as father of the year.
But in 2018, the three newspapers published a series of articles that alleged he engaged in war crimes, including murdering civilians and ordering subordinate soldiers under his command to kill civilians in so-called “blooding” incidents.
Roberts-Smith sued the newspapers, telling the court their stories portrayed him as a criminal “who broke the moral and legal rules of military engagement” and “disgraced” his country and its military. The newspapers defended their reporting as true.
The trial heard more than 100 days of evidence over more than a year, including extraordinary testimony of murders committed by Australian soldiers, and of a spiteful and factionalised SAS regiment, deeply riven by internecine fighting over decorations and medals and in thrall – on some evidence – to a “warrior culture” steeped in violence.
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.
The most dramatic allegation concerned the killing of an Afghan father of six, Ali Jan. The court was told that during a 2012 mission to the village of Darwan, Roberts-Smith marched a handcuffed Ali Jan to stand at the precipice of a 10-metre-high cliff dropping down to a dry riverbed.
Ali Jan was held by the shoulder by a subordinate Australian soldier, known before the court as Person 11.
“[Roberts-Smith] kicked Ali Jan off the small cliff or steep slope into the dry creek bed below,” Besanko said in his judgment.
Ali Jan was badly injured but alive at the bottom of the cliff. He was dragged to a cornfield by Australian soldiers, where he was shot dead by the same subordinate soldier, on the orders of Roberts-Smith.
“Person 11 shot Ali Jan who at that point was standing and still handcuffed,” the judge found. “Roberts-Smith was party to an agreement with Person 11 to murder Ali Jan.”
Roberts-Smith told the court the man was a legitimate target because he was a scout for enemy insurgents. However, Besanko found Roberts-Smith knew this was false and that he “was conscious that the killing of Ali Jan was unlawful”.
The court also found Roberts-Smith murdered a disabled man with a prosthetic leg during a raid on a compound known as Whiskey 108, in the village of Kakarak, in 2009. On the same mission, Roberts-Smith ordered a subordinate soldier to execute an elderly unarmed prisoner.
Further allegations made by the newspapers against Roberts-Smith – including that he committed an act of domestic violence against a woman with whom he was having an affair – were not found proven to the civil standard of the balance of probabilities.
But the judge ruled those could be defended as “contextually true” – and caused no further harm to Roberts-Smith’s reputation – because of the gravity of the allegations the newspapers had already proven.
No criminal charges have been laid against Roberts-Smith and he maintains his innocence.
He remains under active investigation by the federal government’s Office of the Special Investigator which was established to investigate allegations of war crimes committed by Australian soldiers in Afghanistan.
