Ben Roberts-Smith suffers shattering blow in defamation appeal after war criminal finding

Ben Roberts-Smith has failed in his bid to overturn his blockbuster defamation suit loss to Nine Newspaper after the Full Court of the Federal Court threw out his appeal on Friday.

Mr Roberts-Smith lost his multimillion dollar lawsuit against the Sydney Morning Herald, The Age and Canberra Times over a series of stories making war crime allegations relating to his deployment in Afghanistan from 2009 to 2012.

Australia’s most decorated living soldier was seeking to overturn Justice Anthony Besanko’s landmark 2023 judgment, however the Full Court of the Federal Court dismissed his appeal.

His appeal was on Friday morning dismissed by Justices Nye Perram, Anna Katzmann and Geoffrey Kennett and he was ordered to pay Nine’s costs for the appeal.

“Having carefully considered all these matters, we are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men and to the extent that we have discerned error in the reasons of the primary judge, the errors were inconsequential,” the judges said in an executive summary.

“Accordingly, the appeal must be dismissed with costs.”

Roberts-Smith was not in court on Friday morning and his only recourse now will be to seek leave to appeal to the High Court.

Nine lawyer Dean Levitan said as he exited court: “The smile says it all.”

Justice Besanko’s 2023 findings were made on the balance of probabilities, which is less than the criminal standard of beyond a reasonable doubt, as he upheld Nine’s truth defence.

Mr Roberts-Smith has maintained his innocence.

Nine on Friday welcomed the win, calling it a “vindication for the brave soldiers of the Australian Defence Force’s SAS Regiment” and “a great day for investigative journalism”.

“The Court has confirmed the stories published by The Age and The Sydney Morning Herald resulting from an investigation by award-winning reporters Nick McKenzie and Chris Masters have been proven true,” Nine’s managing director of publishing Tory Maguire said.

Mr McKenzie described it as an “emphatic result” and expressed his gratitude to “the brave SASR soldiers who not only fought for their country in Afghanistan but fought for the Australian public to learn the truth: that Ben Roberts-Smith is a war criminal.”

“It should not be left to journalists and brave soldiers to stand up to a war criminal,” Mr McKenzie said in a statement.

“Australian authorities must hold Ben Roberts-Smith accountable before our criminal justice system.”

The proceedings related to stories published between June and August 2018.

Among the findings which Mr Roberts-Smith was seeking to overturn was the allegation that he took part in the murder of a handcuffed shepherd, Ali Jan, at Darwan in September 2012.

Mr Roberts-Smith also disputed findings relating to allegations that he was involved in the killings of two prisoners at a compound dubbed “Whiskey 108” on Easter Sunday in 2009.

According to the allegations, Mr Roberts-Smith shot one man in the back and directed another “rookie” soldier to shoot another prisoner.

During a hearing, the Victoria Cross recipient’s barrister Bret Walker SC argued that the evidence did not support Nine’s truth defence.

He also argued that Justice Besanko failed to take into consideration the “Briginshaw principle” which dictates that serious allegations should be treated cautiously when making grave findings.

“(Mr Roberts-Smith) was and remains entitled to the presumption of innocence. It is only within … the criminal justice system, that a finding of guilt in relation to war crimes can be made,” his lawyers argued in their submissions to the court.

The court also dismissed an application by Mr Robert-Smith’s legal team to reopen his appeal.

The Victoria Cross recipient claimed he suffered a miscarriage of justice after recordings surfaced of reporter Nick McKenzie allegedly admitting to accessing information relating to the veteran’s legal strategy before the trial.

Mr Roberts-Smith argued his ex-wife had access to his email account and that she and a friend passed his privileged messages on to Mr McKenzie.

His lawyers argued that the admission of the recording could have made a difference to the outcome of the trial.