An Australian SAS veteran lied about murdering civilians in Afghanistan, deliberately hid potentially damaging evidence from a court, colluded with witnesses who supported him and threatened those who might give evidence against him, a federal court judge has found,
Justice Anthony Besanko found Ben Roberts-Smith, Australia’s most decorated living soldier, murdered civilians while on deployment with the SAS in Afghanistan and lied in his evidence, under oath, before court.
The judge’s excoriating judgment concluded the ex-soldier’s failed defamation case against three newspapers.
Roberts-Smith had brought the defamation action against the Age, the Sydney Morning Herald, and the Canberra Times, claiming they had falsely portrayed him as a war criminal, a murderer and a bully.
The newspaper successfully defended their reporting as true, with the judge dismissing Roberts-Smith’s claims in their entirety.
An appeal by Roberts-Smith to the full bench of the federal court is expected.
“I have difficulty accepting the applicant’s [Robert-Smith’s] evidence on any disputed issue,” the judge said. Mr Besanko said Roberts-Smith was motivated to – and did – lie to the court.
Two of the most high-profile allegations of murder against Roberts-Smith were both found proven by the judge in the defamation case to the civil standard of the “balance of probabilities”.
In 2009, Australian SAS troops found two men hiding in a secret tunnel in a bombed-out compound known as “Whiskey 108″, in a village called Kakarak. The men – one elderly, the other a younger man with a prosthetic leg – emerged from the tunnel unarmed and surrendered.
Roberts-Smith ordered a junior soldier on his patrol to execute the old man, before manhandling the man with the prosthetic leg outside the compound, throwing him to the ground and machine-gunning him dead.
Roberts-Smith gave evidence to the court about the mission, saying he shot the disabled man because he was running and carrying a weapon and that another Australian soldier, unknown to him, had shot the disabled man, saving his life. Roberts-Smith called four other soldiers as witnesses to support his evidence. The judge rejected them all as dishonest.
The other major allegation against Roberts-Smith concerned a mission to the southern Afghan village of Darwan in 2012, where, the court found, he marched a handcuffed man named Ali Jan to stand above a 10-metre-high cliff that dropped down to a dry riverbed.
Ali Jan was held by the shoulder by another 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.”
Ali Jan was badly injured but alive at the bottom of the cliff. He was carried to a cornfield by Australian soldiers, where he was killed by a subordinate soldier at Roberts-Smith’s direction.
“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 court the man was a legitimate target because he was a scout for enemy insurgents, known as a “spotter”. However, Mr Besanko found Roberts-Smith knew this was false and that he “was conscious that the killing of Ali Jan was unlawful”.
The judge also found Roberts-Smith lied about burying USBs containing sensitive, classified defence material in his backyard, the judge has found.
His defamation trial heard his ex-wife, Emma Roberts, and a family friend dug up six USB storage sticks buried in a child’s lunchbox in the family backyard, before handing the classified files to police.
Included on the USBs was classified information including operational reports from SAS missions in southern Afghanistan, drone footage of military operations and classified photographs.
The judge said Roberts-Smith knew the documents were relevant to the case and kept them hidden.
Roberts-Smith also sent two anonymous threatening letters to an SAS comrade, known before the court as Person 18. The letters warned Person 18 to recant his evidence to the inspector general of the Australian Defence Force’s inquiry into war crimes, or face being accused of murder himself.
Despite his denials, the judge found Roberts-Smith wrote the letters and gave them to a former policeman-turned-private eye to post.
Emma Roberts also gave evidence Roberts-Smith admitted to sending the letters and said she saw him at home with a grey shopping bag filled with a packet of Reflex paper, a packet of envelopes and a packet of gloves.
In court, Roberts-Smith denied sending the letters. But Justice Besanko said he was “satisfied on the evidence that the applicant [Roberts-Smith], through Mr McLeod, arranged for two threatening letters to be sent to Person 18. I accept the evidence of Mr McLeod and Ms Roberts and I reject the evidence of the applicant [Roberts-Smith].”
The judge also found Roberts-Smith colluded with a witness he called to provide “a false account”.