Ben Roberts-Smith has lost his appeal against his defamation case ruling this morning.
Three justices of the federal court agreed that the former SAS soldier, general manager of Seven Queensland and Victoria’s Cross recipient, was not defamed by journalists Nick McKenzie and Chris Masters and Nine newspapers when, in 2018, they published reports that he had allegedly committed war crimes.
This latest ruling upholds the decision of Justice Anthony Basenko, who in 2023 found that Roberts-Smith had, on the balance of probabilities, committed war crimes while deployed in Afghanistan. Roberts-Smith appealed this ruling in court in February 2024.
The court also reportedly overturned an application to reopen the appeal over a secret recording he claims reveals an alleged miscarriage of justice.
The recording of a phone call between McKenzie and one of the witnesses in the trial allegedly reveals McKenzie telling her that Roberts-Smith’s ex-wife and her friend were “actively briefing us on his legal strategy” during the initial trial.
McKenzie has denied any claims that he obtained privileged information while investigating Roberts-Smith.
The 46-year-old, who is one well known as of Australia’s most decorated soldiers, was awarded the Victoria Cross, Australia’s highest military honour, in 2011 for single-handedly taking out machine-gun posts to protect pinned-down colleagues in Afghanistan.
McKenzie and Masters allege that during the same tour, he was responsible for the murder of four unarmed civilians when deployed in Afghanistan. Roberts-Smith has always denied all allegations made against him.
Nine’s managing director of publishing, Tory Maguire, said that Nine welcomed the decision.
“This is an emphatic win for Nine. 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,” he said.
“The Federal Court found Ben Roberts-Smith to have committed multiple war crimes while serving with the Australian Defence Force in Afghanistan. The Court said: “We are unanimously of the opinion that the evidence was sufficiently cogent to support the findings that the appellant murdered four Afghan men”.
Maguire called the decision a “vindication for the brave soldiers of the Australian Defence Force’s SAS Regiment” and a “great day for investigative journalism”.
“These men are proud Australians who served their country with distinction and demonstrated courage by boldly speaking the truth about what happened in Afghanistan. This is a win for them and the values they represent.
“Today is also a great day for investigative journalism and underscores why it remains highly valued by the Australian people. Nine has unswervingly backed our reporters and editors throughout this matter, reinforcing our longstanding commitment to quality journalism in the public interest”.
“The Court did not accept that there was any breach of legal privilege by Nick McKenzie and dismissed Roberts-Smith’s recent attempt to disrupt the appeal and ordered he pay Nine’s costs related to this. Nick is an outstanding journalist, respected by his editors, colleagues at Nine and peers in newsrooms across the country,” he said.
Nick McKenzie called the decision “an emphatic result”.
“I want to pay tribute and express my deep 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.
“I also want to acknowledge the victims of Roberts-Smith, including the Afghan children and women who have lost their fathers and husbands who were murdered at the direction of Roberts-Smith.
“I am grateful that the full bench of the Federal Court has now scrutinised our journalism and the brave testimony of SASR soldiers and vindicated our efforts to tell the Australian public the truth.
“Finally, it should not be left to journalists and brave soldiers to stand up to a war criminal. Australian authorities must hold Ben Roberts-Smith accountable before our criminal justice system”.
While this decision has found Roberts-Smith guilty “on the balance of probabilities,” he has not been charged in a criminal court.
The cost of the ongoing legal saga that has spanned some seven years is believed to exceed $25m. With the decision, he could be forced to pay these costs.
