Roberts-Smith to take war crimes claims to High Court
Adelaide Lang |
Disgraced veteran Ben Roberts-Smith has pledged to continue to fight after an appeal court upheld findings that he was likely a war criminal.
The Victoria Cross recipient – who faces a multimillion-dollar legal bill – was not present in court as his defamation appeal over 2018 newspaper reports was tossed out on Friday.
In a statement, he said he would immediately seek to fight the decision in the High Court.
“I continue to maintain my innocence and deny these egregious, spiteful allegations,” he wrote.
“Sunlight is said to be the best disinfectant, and I believe one day soon the truth will prevail.”
The high-profile veteran sued Nine newspapers and journalists Nick McKenzie and Chris Masters for defamation over their reports in 2018, which claimed he had committed war crimes.
But in 2023, Justice Anthony Besanko found the claims that Roberts-Smith was responsible for the murder of four unarmed civilians when deployed in Afghanistan were substantially true.
Roberts-Smith launched an appeal against findings, which was heard in the Federal Court over 10 days in February 2024.
After a year of waiting, Justices Nye Perram, Anna Katzmann and Geoffrey Kennett dismissed his appeal on Friday.
“We are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men,” they wrote in a summary of their judgment.
Their reasons are expected to be published in due course.
Nine’s lawyers were seen hugging and celebrating after the decision, which Nine Publishing managing director Tory Maguire welcomed as an “emphatic win”.
“Today is also a great day for investigative journalism and underscores why it remains highly valued by the Australian people,” she said while heralding McKenzie’s “outstanding” work.
McKenzie expressed his gratitude to SAS soldiers and said it “should not be left to journalists and brave soldiers to stand up to a war criminal”.
“Australian authorities must hold Ben Roberts-Smith accountable before our criminal justice system,” the award-winning journalist said.
Roberts-Smith denies any wrongdoing and has not been charged.
However, the dismissal of his appeal could clear a path for a criminal investigation by the Australian Federal Police and the Office of the Special Investigator.
The decision also paves the way for Roberts-Smith to pay out upwards of $30 million in legal costs from the defamation proceedings in addition to the cost of the 10-day appeal.
He first rose to prominence in 2011 after he was awarded Australia’s highest military honour, the Victoria Cross, for single-handedly taking out machine-gun posts to protect pinned-down colleagues in Afghanistan.
Later named Australian Father of the Year, the former SAS corporal’s reputation was tarnished by Nine’s explosive reports in 2018 alleging he was complicit in war crimes.
In the decision upheld by the Full Court on Friday, Justice Besanko determined the former SAS corporal machine-gunned a man with a prosthetic leg – which he then encouraged soldiers to use as a drinking vessel.
On the same day in 2009, Roberts-Smith ordered the execution of an elderly prisoner to “blood the rookie” during a raid on a compound known as Whiskey 108, the judge found.
He also found Roberts-Smith kicked a handcuffed prisoner off a cliff in 2012 and ordered another prisoner be shot dead at another date.
The allegations – as well as claims Roberts-Smith had engaged in a campaign of bullying against a fellow Australian soldier – were found to be proven on the balance of probabilities.
The appeal court also rejected the disgraced war veteran’s bid to reopen his appeal over claims McKenzie had unfair access to his legal strategy.
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