Roberts-Smith v Fairfax Media Publications Pty Limited

Roberts-Smith v Fairfax Media Publications Pty Limited
Court	Federal Court of Australia
Decided	1 June 2023
Citation	[2023] FCA 555
Case history
Subsequent action	Applicant appealed decision
Ruling
The proceedings be dismissed
Court membership
Judge sitting	Besanko J
Keywords
Defamation

Roberts-Smith v Fairfax Media Publications Pty Limited was a 2023 decision of the Federal Court of Australia which found that articles written by journalists Nick McKenzie, Chris Masters and David Wroe alleging Victoria Cross for Australia awardee Ben Roberts-Smith committed murder and other war crimes in Afghanistan were not defamatory. Justice Anthony Besanko found, on the balance of probabilities, that the journalists had established the substantial truth or contextual truth of many of the allegations.

The trial ran for 110 days at an estimated cost of AUD25 million.[1]

Despite the finding, Roberts-Smith has not been charged with any criminal offences.[2]

Roberts-Smith has appealed the decision.[3]

Background

Born and raised in Western Australia, Roberts-Smith joined the Australian Army in 1996 when he was eighteen. In 2003 he was posted to the Western Australian-based Special Air Service Regiment (SASR). During his time with the SASR, Roberts-Smith deployed to Afghanistan on six occasions. In 2006 he was awarded the Medal for Gallantry for his actions as a patrol scout and sniper.[4]

Roberts-Smith was awarded the Victoria Cross for Australia in 2011 for his actions during Operation Slipper, the Australian contribution to the War in Afghanistan. The citation for his Victoria Cross states Roberts-Smith initiated an assault on an enemy fortification. During the assault, Roberts-Smith "knowingly and willingly exposed his position in order to draw fire" and later "with total disregard for his own safety ... stormed two enemy machine gun positions killing both machine gun teams."[5]

in 2017, allegations arose claiming SASR personnel in Afghanistan committed of murder and other war crimes. The Inspector General of the Australian Defence Force commissioned an inquiry into the allegation. The subsequent report—commonly known as the Brereton Report—found evidence of multiple unlawful killings by Australian Defence Force personnel between 2009 and 2013.[6]

Articles

in 2018, Australian journalists Nick McKenzie, Chris Masters and David Wroe named Roberts-Smith as one of the persons alleged to have committed war crimes in Afghanistan.[7]

Findings

The Court found the following inferences regarding Roberts-Smith substantially true.[8]

• He is a criminal who broke the moral and legal rules of military engagement.
• He murdered an Afghan man by kicking him off a cliff and then directing men under his comman to shoot him.
• In order to "blood" a new soldier under his command, he forced the soldier to kill an unarmed Afghan man.
• He murdered a man with a prosthetic leg with a machine gun. He then took the leg as a war trophy and encouraged other soldiers to use it as a drinking vessel.
• He authorised the execution of an unarmed Afghan by another soldier.
• He assaulted other unarmed Afghans on multiple occasions.
• He bullied a fellow soldier, including threatening violence.

References

1. Turnbull, Tiffanie (1 June 2023). "Ben Roberts-Smith: Top Australian soldier loses war crimes defamation case". BBC News. British Broadcasting Corporation. Archived from the original on 1 June 2023. Retrieved 13 September 2024.
2. Wells, Jamelle (27 September 2023). "War crimes investigators denied access to all evidence from Ben Roberts-Smith defamation trial". ABC News. Australian Broadcasting Corporation. Archived from the original on 13 September 2024. Retrieved 13 September 2024.
3. McKinnell, Jamie (5 February 2024). "Ben Roberts-Smith begins appeal against landmark defamation loss at Federal Court in Sydney". ABC News. Australian Broadcasting Corporation. Archived from the original on 13 September 2024. Retrieved 13 September 2024.
4. "Australian Army Awarded the Victoria Cross for Australia/Medal for Gallantry Corporal Benjamin Roberts-Smith, VC, MG – Citation". Department of Defence. Archived from the original on 4 April 2012. Retrieved 9 September 2024 – via Trove.
5. "Victoria Cross for Australia (VC) – Corporal Benjamin Roberts-Smith MG, WA", Commonwealth of Australia Gazette, no. S 12, 24 January 2011
6. "Findings and recommendations FAQ". Department of Defence. Archived from the original on 28 May 2024. Retrieved 9 September 2024.
7. Doherty, Ben (1 June 2023). "Ben Roberts-Smith loses defamation case with judge saying newspapers established truth of murders". The Guardian. Archived from the original on 1 June 2023. Retrieved 9 September 2023.
8. Parkes-Hupton, Heath (1 June 2023). "What did Ben Roberts-Smith do? This is what his civil case found". ABC News. Australian Broadcasting Corporation. Archived from the original on 13 September 2024. Retrieved 13 September 2024.