A former SAS soldier who served with Ben Roberts-Smith says other witnesses who did not give evidence in his defamation case will come forward if there is a criminal trial. By Karen Middleton.
Exclusive: More soldiers willing to testify against Ben Roberts-Smith
A former special forces soldier who served alongside disgraced Victoria Cross recipient Ben Roberts-Smith has predicted more witnesses will come forward to testify against him about the murder of unarmed Afghan civilians if criminal charges are laid.
The former member of the Special Air Service Regiment tells The Saturday Paper this week that some of those who declined to give evidence in the veteran’s defamation proceedings against three Nine Entertainment newspapers and three journalists were more likely to do so at a criminal trial.
“There’ll be more people…” the former elite soldier says. “I reckon there’ll be more people come forward.”
The soldier explains that some former colleagues are reluctant to testify at the defamation hearing because they see it as a war between two media companies. Roberts-Smith had been general manager of Seven West Media Brisbane since 2012 but resigned last week after his case was dismissed. The case had been bankrolled by his boss, Seven West executive chairman Kerry Stokes.
“A lot of guys didn’t want to give evidence,” the former SAS soldier says about the long-running case. “The view was, why should they stick up for Channel Nine versus Channel Seven?”
But he predicted in a criminal trial, their attitudes would be different.
“They said, ‘Mate, you put me in front of a judge for a criminal conviction, I’m there,’ ” he says. “They said, ‘We don’t care about a defamation case.’ They didn’t care that it was about big money stakes. They wanted to see the criminal conviction.”
The former soldier said he understood why young officers had not spoken up about Roberts-Smith’s activities in Afghanistan and that it was “the lowest levels” within the regiment who had “brought this up”.
“You’re a young officer … you’re not going to speak up,” he says. “That’s the end of your career.”
He believes some more senior military figures were aware of the allegations circulating against the man who became a celebrity soldier, but they did not act. “People above knew,” he alleges. “And no one did anything.”
His comments follow the release on Monday afternoon of Federal Court Justice Anthony Besanko’s full published reasons for dismissing Roberts-Smith’s defamation case last week. He had agreed to delay publication of the 736-page full judgement by four days at the federal government’s request, so it could be checked to ensure there was no inadvertent disclosure of protected information. A secret set of further reasons that go to security matters has not been disclosed.
Justice Besanko described Ben Roberts-Smith and his key supporting witnesses – SAS members with protected identities – as “not honest and reliable”.
“I have made a number of findings against the applicant which are extremely adverse,” Besanko wrote. “I am satisfied that the proof is clear and cogent.”
A number of the witnesses who gave evidence against the two-metre-tall veteran conceded under cross-examination that they did not like him. Some thought him a bully. But the judge found they were so credible that those views did not tarnish their evidence.
In the published reasons, Besanko said there was substantial truth to most of the allegations by journalists Chris Masters and Nick McKenzie, and their colleague David Wroe. He found Roberts-Smith murdered or was responsible for the murder of defenceless Afghan civilians and that he had lied to the court, bullied a colleague and threatened and intimidated witnesses.
Of six reported murders, Besanko found substantial truth in the reported details of four of them, along with the reports of bullying and intimidation.
The Office of the Special Investigator is examining war crimes allegations against an unspecified number of soldiers. One, 41-year-old Oliver Schulz, has been charged with murdering Afghan man Dad Mohammad in a wheat field in the village of Deh Jawz-e Hasanzai in 2012.
Justice Besanko addressed the prospect that criminal charges against Ben Roberts-Smith could follow his ruling.
“It might be said that at a general level it is inherent in the finding of criminal conduct that that may increase the likelihood of the alleged actor being charged,” Besanko wrote. He emphasised this assessment was at a general level because there was no evidence presented on just how much more likely it would be.
The defamation case was highly unusual, not only for its 100-day duration, number of witnesses, high-profile proponents and elements of secrecy. Besanko had to rule on the substantive or contextual truth or otherwise of the newspapers’ allegations. In finding them substantially true, he was effectively calling Australia’s most decorated living soldier a murderer and a war criminal, without him having been charged with a crime – and based on a lower burden of proof than would exist at a criminal trial.
In civil proceedings, respondents are required to prove their assertions only on the “balance of probabilities”, not to the higher criminal standard of being “beyond reasonable doubt”.
The case centred on a series of news reports published in The Age, The Sydney Morning Herald and The Canberra Times in June and August 2018. None of them named Roberts-Smith but some described a soldier, given the pseudonym “Leonidas”, killing innocent civilians in Afghanistan. The judge accepted that readers would conclude it referred to Ben Roberts-Smith.
Three incidents featured most substantially. One involved the killing on September 11, 2012, of a man named Ali Jan, who was kicked over a cliff while handcuffed and then shot at the bottom. An earlier incident, on Easter Sunday 2009, involved the murder of two men at a bombed-out compound, codenamed Whiskey 108. One of them had a prosthetic leg.
Justice Besanko found Roberts-Smith kicked the handcuffed Ali Jan off the cliff in the village of Darwan, during a search for rogue Afghan soldier Hekmatullah, who was believed responsible for killing three Australians in a “green-on-blue” attack. He found Roberts-Smith then directed a colleague to shoot him.
At Whiskey 108, the court heard the SAS found two men hiding in a tunnel inside the compound and that they had emerged and surrendered. Roberts-Smith had insisted there were no men in the tunnel and that the pair were armed insurgents. The judge accepted other SAS soldiers’ testimony that Roberts-Smith had carried the “physically impaired” and defenceless man away and machine-gunned him to death. He had also ordered an inexperienced colleague to shoot the older man. The leg was souvenired and used for drinking games at the SAS’s bar on the Tarin Kowt base, the Fat Ladies Arms, and also back in Australia at Campbell Barracks in Perth.
Besanko said neither Roberts-Smith nor his key witnesses had told the truth.
In another incident in October 2012, at Chinartu in the region of Khas Uruzgan, Besanko found Roberts-Smith ordered an Afghan soldier be made to shoot an Afghan civilian who posed no threat.
The judge ruled there was not enough evidence to find reports of two other alleged murders, at Fasil and Syachow, substantially true. He also could not say definitively that a domestic violence allegation against Roberts-Smith was true and found the veteran’s former lover was an unreliable witness.
But the judge found Roberts-Smith lied to the court about being separated from his wife and again when he denied threatening the woman with whom he was having an affair. While Besanko could not uphold the allegation that the veteran had assaulted her, he called his behaviour “intimidatory, threatening and controlling”.
In their submissions before the court, Roberts-Smith’s lawyers had argued a finding against him in the defamation case would make it more likely he would face criminal charges. They told Justice Besanko he did not have available to him all the evidence that would be available in a criminal trial, including that a criminal prosecutor would have duties of disclosure and fairness.
They said if Besanko found in favour of Nine, he would effectively be finding that two other witnesses in the case – Person 4 and Person 11 – also committed murder and a third, Person 12, was implicated in murder because Nine’s allegations included that the first two had shot Afghans on Roberts-Smith’s instruction, and the third had given an order that an Afghan man be shot.
They said the judge should also consider that it was inherently unlikely that Roberts-Smith would commit murder at all, let alone six murders. They reminded him of the strength of evidence required to find in Nine’s favour and of the importance of the presumption of innocence.
Justice Besanko said he took all of those arguments into account and applied the principles they outlined but rejected them.
He noted it was within his power to reject both parties’ cases if he found neither could be sustained. Roberts-Smith had argued that even if the judge was persuaded by Nine’s arguments, the “vacuum of evidence”, including ballistics and forensic evidence, and the fact the journalists were neither war crimes investigators nor police and did not have such expert assistance, meant their case could not meet even the relevant standard required to win in civil court.
The judge rejected that argument, too.
At issue in the case were what the court found were 14 imputations across the series of 2018 news reports. The judge compiled the reports into three groups, according to the defamatory imputations Roberts-Smith said they contained. They included that he murdered unarmed civilians and ordered others to do so, broke the moral and legal rules of war and was therefore a criminal, and that he disgraced his country and the army by his conduct.
Other imputations were that he had bashed an Afghan, ordered another to be bashed, and was so callous and inhumane that he took the prosthetic leg back to Australia and encouraged colleagues to use it as a novelty drinking vessel.
Further imputations were that he had bashed a woman with whom he was having an affair, and that he was a hypocrite having publicly supported anti-family violence campaigner Rosie Batty.
Nine’s lawyers conceded some of the imputations and disputed others.
Besanko had to first determine whether he accepted that an “ordinary, reasonable reader” would agree that the reports contained the imputations as outlined. In opposing, Nine challenged this, saying the reports did not convey guilt in relation to the events, only that there were “reasonable grounds to suspect” they had occurred. Besanko found overwhelmingly in favour of Roberts-Smith’s contention that imputations of guilt could reasonably be drawn.
At the next stage of the case, however, Roberts-Smith’s arguments failed.
Nine had based its defence on an argument that the allegations included in the reports were either substantially or contextually true. The context in a defamation case is reputation. Besanko found four of the six murder allegations, and a bullying allegation, were substantially true. This meant that although he found the domestic violence and two remaining murder allegations could not be proved to that level, it did not matter.
“The imputations which I found to be substantially true because of the conduct I have identified are so serious that the applicant has no reputation capable of being further harmed,” Besanko found.
In finding the Whiskey 108 allegations proved, Besanko also found Roberts-Smith colluded with four of his former colleagues to align the evidence they would give in court.
“The respondents submit that the applicant, Persons 5, 29, 35 and 38 are very close friends, have a range of shared interests giving them a powerful motive to lie and have engaged in a course of sustained communications designed to arrive at a common narrative concealing the commission of crimes,” Besanko wrote.
He accepted those arguments.
The court had also heard Roberts-Smith buried USB sticks containing potential evidence in his garden at home. The judge found he also lied about that.
“He must have known they were relevant,” Besanko said. “He had sworn three affidavits of discovery and each time has not discovered them. I find that he decided not to discover them.”
Roberts-Smith submitted that he had remained “polite and courteous and composed” during a long and challenging cross-examination. The judge found both he and counsel had remained composed, but that did not sway him.
“I find that the applicant was not an honest and reliable witness in the many areas I will identify,” Besanko wrote. “In addition, I have found a number of other witnesses were not honest and reliable witnesses.”
Roberts-Smith has until July 13 to decide whether to appeal. Kerry Stokes has indicated he wants to read the detailed judgement before deciding whether to fund such a move.
The court will reconvene on June 29 to determine a timetable for deciding the issue of costs, which are expected to run into the tens of millions of dollars. Aside from likely seeking to recover costs from the unsuccessful applicant himself, the Nine newspapers may also seek costs from Stokes for having funded the case.
Speaking to the ABC’s Nightlife program on Wednesday, journalist Chris Masters said Roberts-Smith had not believed the journalists would be able to assemble 20 credible witnesses.
“He thought the code of silence would hold – and it generally does hold,” Masters said. “I mean, two of the witnesses who did speak said that they had kept silent for something like eight years. They didn’t want to talk about this because they knew they wouldn’t be respected by their brotherhood for doing so.”
Masters’ comments echoed the observations of the former soldier who spoke to The Saturday Paper.
“Remember, the great majority of these witnesses were subpoenaed by us and they didn’t want to be there,” Masters said. “They didn’t want to help us and they ultimately proved to be the perfect witnesses in a way because they weren’t on our side. Clearly the facts weren’t on his side.”
This week a second former SAS member described to The Saturday Paper a tension between a mindset ingrained in the special forces – that lethal force is how objectives are achieved – and the rest of society’s predisposition against killing.
“It’s the rub between those two perspectives that keeps you aspiring not to cross the line,” he said.
The soldier says his own conscience is clear about the lives he took. “Interestingly, it’s the lives I didn’t take which kept me awake at night.”
Nevertheless, he argues that beyond issues of morality and law, there is a powerful reason not to take the life of an unarmed civilian in cold blood: it spurs hatred and vengeance in the local people and turns them into an enemy.
“Not because of some moral higher authority, but because if you shoot innocent people, you create terrorists,” he says. “It’s a really dumb thing to do.”
Chris Masters said none of the incidents contained in the newspaper reports occurred in the “fog of war”.
“Every one of these incidents that we reported, and that the inspector-general investigated, was far from that,” he said. “It was in every situation that people who were executed represented no threat, that there was a clear breach of the rules of engagement. Some of them may have been combatants, but by the time that they became persons under control they became detainees that were effectively prisoners. And it’s simply against the laws of armed conflict to murder or mistreat a prisoner. And some of them, of course, weren’t combatants at all.”
The first former SAS soldier to whom The Saturday Paper spoke outlined the challenge of an environment where local people constantly switched between rural civilian life and armed insurgency. He described being certain that some individuals they had come across were active insurgents but having no immediate proof.
“When we got there, they weren’t shooting at us – they didn’t have a gun,” he says. Under circumstances in which someone does not pose an immediate threat, both the laws of war and Australia’s rules of engagement prohibit the use of lethal force. He alluded to the frustration that this generated, along with the Afghan authorities’ practice of quickly releasing suspected insurgents whom the coalition forces had captured, at risk to their own lives.
The 2020 Brereton inquiry into allegations of war crimes found widespread incidences of Australian soldiers planting radios and weapons on the bodies of Afghans, to retro fit assertions that they had posed a threat.
The former SAS soldier did not spell out exactly what might have flowed from the frustrations he described. “But RS took it too far,” was all he would say. “He took it too far.”
This article was first published in the print edition of The Saturday Paper on June 10, 2023 as "Exclusive: More soldiers willing to testify against Ben Roberts-Smith".
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