Ben Roberts-Smith defamation case appeal dismissal judgment released by Federal Court

Australia Broadcast Center

20-05-2025

The Federal Court has published its reasons for dismissing war veteran Ben Roberts-Smith's bid to overturn his defamation loss, which found the Victoria Cross recipient complicit in war crimes while deployed to Afghanistan.
The former Special Air Service Regiment (SASR) corporal launched an appeal after losing his defamation case against three Nine-owned newspapers following a civil trial, which ran for more than 100 days over 2021 and 2022.
Mr Roberts-Smith's appeal, which was heard in February last year, was unanimously thrown out by the full bench of the Federal Court on Friday.
Federal Court Justices Geoffrey Kennett, Nye Perram and Anna Katzmann found "the evidence was sufficiently cogent to support the findings that the appellant [Mr Roberts-Smith] murdered four Afghan men".
The publication of the court's reasons for its decision was briefly delayed to give the Commonwealth the opportunity to redact any evidence that may present national security concerns.
"In a long, careful and clear judgment the primary judge [Justice Anthony Besanko] correctly identified and applied the relevant legal principles and paid close attention to the serious nature of the allegations and the standard of proof," the judgment read.
"His Honour repeatedly reminded himself that the respondents bore the onus of proving the substantial truth of the imputations and of the cogency of the evidence necessary to discharge it."
One of the allegations against Mr Roberts-Smith, which was found to be substantially true to a civil standard, was that the soldier committed murder by machine gunning an Afghan man with a prosthetic leg outside a compound during a mission on Easter Sunday in 2009.
In its appeal judgment, the court characterised the unlawful killing as "dramatic" and suggested a sense of "brazenness" on Mr Roberts-Smiths part considering the presence of three witnesses.
"The killing of the man with the prosthetic leg in such a dramatic fashion does suggest a certain recklessness or perhaps even brazenness on the part of the appellant," the Federal Court found.
"The problem for the appellant is that, unlike most homicides, there were three eyewitnesses to this murder."
"The appellant's efforts to construct uncertainty out of inconsistencies in peripheral detail are unpersuasive."
The full bench also upheld the allegation against Mr Roberts-Smith that during the same mission, he authorised the execution of an unarmed Afghan by a junior trooper in his patrol as an act of "blooding the rookie".
"For completeness, we are satisfied that the evidence concerning the blooding the rookie allegation was not only cogently, but in fact powerfully, probative that the appellant and Person 5 had succeeded in having Person 4 kill someone and this is so taking into account the seriousness of the allegation and the presumption of innocence," the judgment read.
The court also rejected Mr Roberts-Smith's claim that Justice Besanko failed to give weight to his presumption of innocence.
"These were no mere ritualistic incantations, as the appellant suggested," the judgment read.
"It is apparent that His Honour was acutely conscious of the seriousness of the findings the respondents called upon him to make and of the necessity that he be reasonably satisfied that the imputations were substantially true without resorting to inexact proofs, indefinite testimony or indirect inferences."
Mr Roberts-Smith indicated on Friday that he would immediately seek a High Court challenge to the Federal Court's dismissal of his appeal and application to reopen the matter with the inclusion of new evidence.