Ben Roberts-Smith loses appeal against defamation ruling he committed war crimes in Afghanistan
Ben Roberts-Smith has lost his appeal against a defamation case ruling, with three justices of the federal court agreeing he was not defamed by Nine newspapers and journalists Nick McKenzie and Chris Masters when they published reports in 2018 which claimed he had committed war crimes.
The decision was handed down on Friday morning in Sydney and marks a key moment in a marathon legal battle that has spanned seven years.
The ruling upholds the decision of justice Anthony Basenko in 2023 who found that Roberts-Smith had, on the balance of probabilities, committed war crimes while deployed in Afghanistan.
The federal court decision affirms that claims made in news reports by McKenzie and Masters in 2018 that Roberts-Smith was responsible for the murder of four unarmed civilians when deployed in Afghanistan were substantially true.
Roberts-Smith, 46, is one of Australia's most decorated soldiers. He was awarded Australia's highest military honour, the Victoria Cross, in 2011, for single-handedly taking out machine-gun posts to protect pinned-down colleagues in Afghanistan. He has always denied the allegations against him.
He appealed Basenko's ruling, and the appeal was heard in the federal court over 10 days in February 2024. More than a year later, the court handed down its ruling.
The decision means that only the high court can now overturn the findings he has committed war crimes. It also opens the way for a potential criminal investigation by the Australian federal police and the Office of the Special Investigator.
The cost of the long-running legal proceedings are believed to exceed $25m. Now that Robert-Smith's appeal has failed, he could be ordered by the court to pay these costs.
The court also refused Roberts-Smith's application to reopen the appeal over a secret recording he claims reveals an alleged miscarriage of justice.
In a recording of a phone call between McKenzie and one of the witnesses in the trial, McKenzie can be heard telling her that Roberts-Smith's ex-wife and her friend were 'actively briefing us on his legal strategy' during the initial trial.
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McKenzie has denied claims he obtained privileged information while investigating Roberts-Smith.
Additional reporting Australian Associated Press
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EXCLUSIVE Inside the dark mystery at the heart of Jodie Haydon's family: How loved one of Australia's 'First Lady' VANISHED off the face of the earth in case that mystified Aboriginal trackers
She's one of the most recognisable women in Australia, yet few people know that the Prime Minister's fiancée Jodie Haydon is not even the most famous member of her own clan. Jodie's great grandfather Bill Haydon - who her own father was named after - was known as the 'Cedar King' on account of his remarkable ability to discover and extract the high-value timber from deep and dangerous bush. But he suddenly and inexplicably disappeared in 1965 making Haydon the central figure in one of Australia's most enduring and perplexing mysteries. It sparked a massive, weeks-long search involving the army, spotter planes and the most experienced Aboriginal bush trackers. But when they failed to turn up any sign of Bill - something trackers thought was 'really weird' - the disappearance triggered a series of conspiracy theories, each one more wild than the last. At the centre of it all, of course, is a devastated family left grappling for answers. The mystery was only partially solved in 2008 following a coronial inquest, offering some closure to the Haydon clan. It is perhaps fitting that on the 60th anniversary of her great grandfather's disappearance, Jodie will also enter the history books when she marries Anthony Albanese later this year. Here, Daily Mail Australia charts the intrepid, trail-blazing life of the Cedar King - and his mysterious end. Self-made man William Edward Haydon was born on August 10, 1890 in the village of Hannam Vale, surrounded by dense forest around 30km inland from NSW's Mid North Coast. He had little formal secondary education but was well-read and exceptionally quick at numbers. Perhaps unsurprisingly, he followed his father John into the timber industry and by the age of 15, decided to leave home with just two shillings in his pocket. Two years later, he had bought his first bullock team - a pair of harnessed bulls used to haul logs and other supplies for long miles - for 200 pounds. He would go on to buy 50 more, making a name for himself in the region as an extremely hard worker and a highly effective logger. 'He was a very formidable man,' his granddaughter Geraldine Yabsley - Jodie's first cousin once removed - told Daily Mail Australia. 'He could walk 30-40 miles in a day armed with just his bush hook and a bag filled with sugar and tea.' It was in 1934 when, gazing across the remote and inaccessible Carrai Plateau in northern NSW, Bill spied an opportunity: the large number of enormous red cedar trees. Most of the accessible, low-lying cedars had been cleared in the previous century. The rich red timber, which was so valuable it was known as 'Red Gold' by settlers, was easy to work with and was used for furniture, wood pannelling, coffins and even shipbuilding. 'Cedar wood was in very high demand because it took so long for the trees to mature,' Phil Lee, President of the Kempsey Museum, said. By the time Bill was working in the timber industry, most of Australia's native cedars had already been felled. There was money to be made if he could somehow cut down and transport these remote trees to towns and settlements. Yet there was the small problem of 50km of thick bush and steep terrain to overcome. Blazing a trail The Forestry Commission said they would support a licence for Bill to harvest the wood, but stopped short of building a road, according to the Macleay Argus. So, with the help of the first Caterpillar bulldozer in the area, he built one himself. 'He was an entrepreneur, ahead of his time,' Geraldine said. 'In the 50s he was talking about using helicopters to fly timber out of the bush – years before it was done.' The toil was worth it: the money poured in and he was able to start building sawmills across the mid-North Coast. 'He opened up a lot of country. He helped pave the way to build roads and towns,' Geraldine said. 'These places and people were there because of him.' In all, Bill built ten sawmills over his lifetime, creating hundreds, if not thousands of jobs in the area. 'He was a very, very well-known man,' Geraldine added. 'He was a local legend in his lifetime. Everyone knew him. He was a fine figure of a man, six-foot-something, handsome. A very powerful personality.' The logging they did back then was a lot more selective to ensure regrowth. Unlike today, when timber companies clear whole tracts of forests, Bill and his team would travel far and wide to extract a few prized cedars. John Vader, author of Red Cedar: The Tree of Australian History, described how a typical day for Bill's team would involve setting off into the New England Escarpment with in a convoy of Land rovers equipped with snow chains and accompanied by tractors. 'From a basecamp they would descend 11 miles into the gorge, sometimes on spurs only a vehicle width and nearly perpendicular drops into breathtaking hidden valleys,' the Dorrigo Heritage Defenders page notes. 'On many occasions the only option was to drag the tractors to safety in reverse using rear mounted winches attached to a nominated sturdy tree cutting their way as they went.' One 'pretty decent' haul involved a cedar tree trunk 5.5 metres in circumference - roughly the equivalent of ten people standing with their arms outstretched just to encircle it once. It was tough but rewarding work and Bill shared the spoils around. He reportedly built 80 houses, two schools, donated the rich red cedar to Catholic churches in the area and sponsored the local footy team. 'He was a very generous man. He was always helping out the nuns and after the floods in 1949-50, he helped relocate a number of families from downtown to higher land near the Kempsey hospital,' Geraldine added. Bill commissioned a film called 'Red Gold' in the 1950s charting the history of cedar getters on the north coast. By the morning of April 28, 1965, his reputation as the 'Cedar King' was firmly established. But just 24 hours later, he disappeared forever. The vanishing Bill, his son Jack and a local Kempsey man called Jack Clarke had set out for the Washpool State Forest in northern NSW a couple of days earlier. They had a government contract to find red cedar for new double decker railway carriages and, at the age of 75, it was, with bitter irony, to be Bill's last job before retirement. On April 28, Bill's son and Jack Clarke left their camp in the Willowie Scrub to look for cedar in a nearby gully while Bill decided to stay behind to scout for the red gold nearby. The going was harder than they'd anticipated and the two Jacks were forced to camp overnight. They returned to camp the next day but there was no sign whatsoever of Bill. A massive search party was launched - one of the largest in NSW history - involving hundreds of bushmen, soldiers and police. But they failed to turn up any trace of Bill - apart from some markings he'd left on red cedar trunks. Geraldine was just six years old when he went missing. 'But I remember it was clear as day,' she said. 'All the people coming and going in the house. All of the crying. Mum and my sister went up to the forest to help look and to help feed the men.' The mystery Geraldine, 67, published a book in 2009 alongside a journalist Kathleen Davies called: 'Bill Haydon, The Cedar King - The man behind the legend'. 'When writing the book I spoke to people who were there and who were involved in the massive search party,' she said. 'They all said it was very strange. Really renowned trackers, some of them aboriginals, were able to follow his trail through some cedar trees where he had left markings. 'They found that he had walked off a little bit and then stepped on to a fallen, moss-covered log. 'But the curious thing they all said was that he never got off that log. His tracks just stopped there. It was as if he had vanished on the spot. 'The trail just ended. Some of the trackers said they expected to find his body there but there was nothing. 'They all said it was really weird. And this was coming from expert bushmen.' Mr Lee, who is also President of the Macleay River Historical Society, agreed that his disappearance was 'certainly strange'. 'He was an expert bushman so he probably left the markings on the trees to find his back to camp. But he just never got there,' Mr Lee added. The search was eventually bolstered by 120 soldiers and a Cessna aircraft sent down from Queensland. But after weeks of combing the dense bush it was eventually called off. The investigation His disappearance had a devastating impact on the family that echoed for years afterwards. 'My grandfather's wife - Olivetta - Granny Haydon to us, they said she cried to the day she died in her nineties. She missed him something terrible,' Geraldine said. 'He was a very strong personality so when you took the rudder away they were lost.' The lack of closure of not finding a body gave rise to wild conspiracies, especially given that northern NSW is full of strange happenings. There have been well-documented sightings of a black panthers and UFOs in the regions dark forests. 'I know people that swear they have seen a Yowie in the Upper Macleay valley,' Mr Lee said. Some claim that Bill was taken by one of the mythical Aussie beasts. 'People said all sorts of silly nonsense about his disappearance. We've heard every story going,' Geraldine said. 'Some people claim he actually staged the whole thing and ran away. 'Some swore that they saw him at a race course years afterwards, others claimed he'd been taken by aliens. 'But he would never ever have left our granny. He was a very family-oriented man.' The lack of closure was exacerbated by the fact that a death certificate was never issued. In the process of writing and researching her book, Geraldine pushed for a coronial inquest into Bill's disappearance. 'The police investigated it. They even visited my mother Winnifred in her care home and took DNA in case her grandfather ever shows up,' she said. 'The magistrate was very apologetic and couldn't believe a death certificate had never been issued.' Bill Haydon's legacy continues in the current generation, with Jodie's father Bill being named after him. Her branch of the family settled further south, on the Central Coast where she and Albanese bought a $4.3 million clifftop home in Copacabana. Searching for answers So what happened to the Cedar King? Mr Lee, who is also President of the Macleay River Historical Society, believes he knows the answer. 'There had been mining in the area so he could have easily fallen into the mouth of an overgrown mine shaft,' he said. It's a conclusion that Geraldine also thinks is most likely. The area had been mined for tin in the 1880s. Miners would dig holes just a couple of metres in diameter, which would eventually fill with water and be covered by foliage. 'It was thick bush back then. Very much like a rainforest so it is absolutely possible that even an experienced bushman, which Bill very much was, could have taken a step and fallen into one of the shafts,' Geraldine said. 'If there was water down there and it was wet and cold, he would have died from exposure before anyone could have heard him.' While that remains the most likely outcome, theories will always swirl without a body. 'If only we could find his body the story would end. But there is no closure,' Geraldine added. 'We know he went into the bush but he never came out. It is the big mystery – it's what carries on his legend.' 'But let's be real: it's national park. It's a complete wilderness. There's as much chance of you or I winning the lottery as them finding him.'
