Ben Roberts-Smith’s libel lawsuit against Nine ends

The Ben Roberts-Smith defamation trial of the century against nine newspapers ended with the court’s latest motions to convict or exonerate Australia’s most revered living soldier of committing “the most heinous criminal acts” while serving in the SAS.

Now begins the suspense for the elite veteran and his accuser journalists as the judge steps down to deliver a verdict on a decades-long case that has already redefined Australia’s war in Afghanistan.

Mr. Roberts-Smith’s lawyers are hoping a ruling in his favor will clear his name and bring in the largest libel payout in history, while the decision against Nine can be seen as confirmation of their claims that he killed unarmed prisoners.

The case finally closed on Wednesday after more than 100 days of gathering evidence, more than $25 million in legal fees and two weeks of closing speeches.

Roberts-Smith’s lawyer, Arthur Moses, S.K., used his last moments on his feet to remind Judge Anthony Besanco that Nine had the heavy burden of proving that his client was the killer.

The body of evidence, Mr. Moses told the court, shows that Ninth had no basis or evidence to publish serious allegations that Mr. Roberts-Smith killed six unarmed Afghans.

“(Nine) have released allegations and stories as fact condemning Mr Roberts-Smith as guilty of the most heinous criminal acts that can be committed against an Australian Defense Force member and any citizen,” he said.

“It depends on the memories of events that happened during missions over 10 years ago… Memories that are contradicted by their own witnesses, our witnesses and Defense Force documents.”

“They presented a case based on mere suspicion, conjecture and conjecture to the court to convict a man who served his people with great distinction as a war criminal.”

He urged the judge to dismiss Nine’s case “in all forms”.

Nine’s barrister, Nicholas Owens SC, closed his case without the pomp and color of his opponents, instead reverting to claims and counterclaims in forensic detail.

One question Nine has never been answered, according to Mr. Roberts-Smith, is what motive he had for killing six of the detained Afghans when he brought hundreds more safely back to Australian bases.

Mr. Owens opened his case in June 2021, stating that even “the most brutal and vile Taliban member imaginable” cannot be killed once detained, and “this is murder.”

On Wednesday, more than 12 months after saying those words, Mr. Owens returned to the question of motive, saying that Mr. Roberts-Smith had killed detainees simply because they were “enemy combatants.”

“We are saying that it was a strong motive that was at work in all of these incidents… it was a motive to kill the Taliban insurgents, regardless of the legality of it,” Owens told the court.

It is not known how long it will take Judge Besanco to reach a verdict, but given the amount of evidence and documents, it is expected to take many months.

The judge thanked the lawyers on both sides, as well as the Commonwealth government legal team, who were there every single day, primarily to keep highly classified military information out of the public sphere.

The trial itself was held partly in open court and partly in closed court to consider confidential testimony and military documents.

As a result, very few people know the full body of evidence that Judge Besanco must examine in order to reach his verdict.

What is known is that the trial is the culmination of years of conflict within the SAS and overlaps with the investigation of top-secret war crimes in many ways.

Mr. Roberts-Smith was awarded the Victoria Cross, the highest military decoration, when he stormed machine guns forged by his men at the Battle of Tizac in late 2010.

In the years that followed, venture capital and Mr. Roberts-Smith’s meteoric rise to national hero divided the SAS into two camps, the court heard.

Several soldiers testified that many in the SAS supported Roberts-Smith as one of the best in the brotherhood, while others believed that the famous captain was a thug for his men and perhaps even something more sinister.

It was in 2016, two years before the Articles of the Ninth, that the Inspector General of the Australian Defense Force began investigating rumors of war crimes in the SAS.

Many of the witnesses in court testified before the IGADF, but the Commonwealth legal team ensured that none of their discussions were reported.

Mr Roberts-Smith filed a defamation suit shortly after Nine accused him of war crimes killings in mid-2018 articles.

He continues to deny the claims as Nine digs; defending the articles in federal court, saying they are true.

As the trial progressed in court, undercover investigations into war crimes continued.

The IGADF ultimately concluded that there was “credible information” about 39 potential killings linked to Australian Special Forces, but all details are redacted in a November 2020 report.

The findings led to the creation of the Office of the Special Investigator, which uses the Australian Federal Police to handle criminal investigations and prosecutions.

OSI had not filed war crimes charges against anyone, but it was clear that they, too, were closely following the defamation trial that went through the dustiest corners of Afghanistan to the internal rifts of Australia’s most secretive military brotherhood.

Originally published as “The most heinous criminal acts”: the trial of Ben Roberts-Smith ended