Ben Roberts-Smith defamation appeal failed because ‘unlike most homicides, there were three eyewitnesses', judges explain

The Guardian

20-05-2025

Ben Roberts-Smith acted with 'a certain recklessness or perhaps even brazenness' when he killed a man with a prosthetic leg in Afghanistan in full view of other soldiers by shooting him with a machine gun, the full bench of the federal court has found.
'The problem for [Roberts-Smith] is that, unlike most homicides, there were three eyewitnesses to this murder,' the judges wrote.
The disgraced former soldier lost his appeal against a defamation case ruling last week, with three justices of the federal court agreeing that 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 of the court was handed down on Friday morning in Sydney, but reasons for the judgment were temporarily withheld to give the federal government time to ensure that no matters of national security had inadvertently been revealed in them. The open reasons were published on Tuesday. Roberts-Smith has always denied the allegations against him and indicated he would appeal the decision to the high court.
In the open reasons, Justices Nye Perram, Anna Katzmann and Geoffrey Kennett examined the findings of Justice Anthony Besanko, who ruled in 2023 that Roberts-Smith had, on the balance of probabilities, committed war crimes while deployed in Afghanistan.
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'We detect no error in his Honour's approach,' the justices wrote, in an analysis of Besanko's findings relating to one of the deaths at the heart of the case – the killing of an unarmed Afghan man who had a prosthetic leg.
'The eyewitness accounts provided cogent evidence that the appellant had machine gunned the man with the prosthetic leg … When all is said and done, it is a rare murder that is witnessed by three independent witnesses. The appellant's efforts to construct uncertainty out of inconsistencies in peripheral detail are unpersuasive.'
The bench also dealt with Roberts-Smith's contention that Besanko had erred in his decision by reasoning 'in a fashion which had reversed the burden of proof'.
'There is nothing in this submission,' concluded the appeal judges, who added that some of the criticisms made of Besanko in Roberts-Smith's appeal submission were 'both unfair and unfounded'.
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The decision of the full bench of the federal court affirms as substantially true 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.
The bench backed Besanko's reasoning, calling it a 'long, careful and clear judgment'.
'We are satisfied that his Honour's conclusions with respect to the substantial truth of the relevant imputations conveyed by the respondents' articles were correct. Consequently, the appeals must be dismissed.'
The bench ordered Roberts-Smith to pay costs, which the Sydney Morning Herald has estimated to exceed $40m.