Ben Roberts-Smith loses defamation appeal over war crimes findings

Decorated war veteran Ben Roberts-Smith has lost a high-profile legal appeal seeking to overturn findings that he likely engaged in war crimes during his service in Afghanistan.

The Federal Court dismissed the former soldier’s defamation appeal on Friday, marking a major defeat for Australia's most decorated living soldier and potentially concluding a years-long legal battle that has captivated the nation. Roberts-Smith, who was not present in court, now faces a substantial legal bill estimated to exceed $25 million.

Lawyers for Nine newspapers, who published the original reports in 2018, were seen embracing outside the courthouse, visibly jubilant over the outcome. "The smile says it all," one lawyer told reporters. In contrast, Roberts-Smith’s legal team declined to comment as they left the building.

Roberts-Smith, a Victoria Cross recipient, sued Nine and investigative journalists Nick McKenzie and Chris Masters over a series of reports alleging he was involved in the unlawful killing of unarmed civilians while deployed with the SAS in Afghanistan. In 2023, Justice Anthony Besanko ruled the allegations were substantially true, including claims that Roberts-Smith was involved in the murder of four unarmed Afghan men.

Among the most damning accusations were that Roberts-Smith executed a man with a prosthetic leg and encouraged fellow soldiers to use the leg as a drinking vessel. He was also accused of ordering the killing of an elderly prisoner in 2009 to initiate a junior soldier, and of kicking a bound prisoner off a cliff before having him executed in 2012. Another killing was linked to a weapons cache found in the village of Cinartu.

These claims were upheld by Justice Besanko on the balance of probabilities, a standard used in civil cases. Friday's ruling confirmed the original judgment, with the full court dismissing the appeal. The court’s written reasons are expected to be released in the coming days.

Nine successfully argued that its reporting was grounded in solid evidence and that Justice Besanko’s findings were appropriately supported.

Roberts-Smith, once hailed as a national hero for his bravery under fire and named Australian Father of the Year, now faces the prospect of paying Nine’s legal costs for both the original trial and the failed appeal. His legal team may consider taking the matter to the High Court, but such a move would be his final legal recourse in a saga that has spanned more than seven years.

Despite the serious nature of the findings, Roberts-Smith has not been criminally charged in relation to any of the alleged incidents.

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