Roberts-Smith, a former soldier with the elite Special Air Services Regiment [SASR], sued the Sydney Morning Herald, The Age and Canberra Times for defamation after they reported he had murdered Afghans during multiple deployments to the country.
He claimed the publications had undermined his reputation and made him out to be a man who “broke the moral and legal rules of military engagement” and “disgraced his country and the Australian army”.
In a summary judgement read out in Sydney on Thursday, Judge Anthony Besanko said that on the balance of probabilities – the evidential standard for a civil trial – “the respondents had established the substantial truth” of several of the allegations, including that in 2012 Roberts-Smith kicked an unarmed and handcuffed Afghan man off a cliff and then ordered two soldiers in his unit to kill the badly injured man.
Besanko found the journalists also established the substantial truth of reports that in 2009 he had murdered a disabled Afghan man, and also ordered the execution of a man who had hidden himself in a tunnel in a bombed-out facility known as Whiskey 108.
The publications opted for the “truth” defense, and the case transfixed Australia through 110 days of hearings that were delayed by the COVID-19 pandemic and ended with closing arguments in July 2022.
Some 40 witnesses gave evidence, including serving and former soldiers, some of whom Roberts-Smith accused of jealousy and lying.
The full public judgement will not be available until Monday after the government asked for its release to be delayed on national security grounds.
Ben Roberts-Smith with previous recipients of the Victoria Cross. He is in the center wearing uniform and with medals pinned to his chest