Archival tape – Reporter:

“Nick, what would you like Ben Roberts-Smith here to reflect on?”

Archival tape – Nick McKenzie:

“Okay last question. I'd like Ben Roberts-Smith to reflect on the pain that he's brought lots of men in the SAS who stood up and told the truth about his conduct. They were mocked and belittled in court. They were bullied. They were intimidated. Some had letters sent to them, threatening letters. I'd like Ben Roberts-Smith to reflect on the people he murdered. The man he kicked off a cliff, the Afghan villagers. That's what I think Ben Roberts-Smith should reflect on.”

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RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

Ben Roberts-Smith dined with Prime Ministers, and attended the Queen’s funeral as a hero just last year. He was held up as an icon of the Australian Defense Force, a huge portrait of him still hangs today in the Australian War Memorial.

Now a court has found that allegations Ben Roberts-Smith is a murderer, a war criminal, and a bully who disgraced his country have been proven.

Today, Chief Political Correspondent for The Saturday Paper, and author of ‘The Unwinnable War’, Karen Middleton – on Ben Roberts-Smith, how the truth was proven, and why investigations into war crimes in Afghanistan must continue.

It’s Monday, June 5.

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Archival tape – Unknown:

“1486 of 2018. Ben Roberts-Smith and The Age Company Proprietary Limited and others
and NSD 1487 of 2018…”

RUBY:

So, Karen, on Thursday, the defamation claims that were launched by former SAS soldier Ben Roberts-Smith against three newspapers and three journalists were thrown out.

Archival tape – Justice Anthony Besanko:

“In light of my conclusions, each proceeding must be dismissed.”

RUBY:

Justice Anthony Besanko found that the newspapers had proven that Roberts-Smith is a war criminal, who was involved in the unlawful killing and assault of an Afghan prisoners.

Archival tape – Justice Anthony Besanko:

“The most serious allegations made in the particulars of truth are that the applicant murdered, or was complicit in, or/and responsible for the murder of Afghan males who were under control or containment.”

RUBY:

There was so much at stake in this case. There was millions of dollars. There was the reputation of journalists and news organisations, and perhaps even the future of investigative journalism in Australia. So as you watch that judgement being handed down on Thursday, what were you thinking?

KAREN:

Well, I thought it vindicated the work of those journalists, which I had always thought was truthful. I wasn't surprised at the result. I was, perhaps, surprised at how definitive it was. I thought it might have been a little bit more on the one hand, on the other hand. But having spoken to just one or two of the Special Forces soldiers who have been involved in this case, and heard what they've had to say about Ben Roberts-Smith and his activities in the past, I believed them. And so I'm not surprised that the judge believed them as well. This is a massive defamation case, the biggest we've seen, possibly ever, in Australia. 100 days of evidence, 40 plus witnesses and a huge amount at stake on either side of the argument, both on the side of a highly decorated Australian soldier, and on the side of a media organisation and journalists who were trying to tell the truth. Now what we have to remember about this though, Ruby, is that this was a civil trial. Defamation is a civil tort, and that's different to a criminal trial. The burden of proof is different. It's not as high in a civil trial. So the journalists did not have to prove as much in terms of truth of the allegations, as a court might have to prove if there was a criminal charge laid. That's a really important distinction. This was an issue of defamation, and at the heart of defamation is reputation. And that also goes to what the judge found. He found that most of these allegations were substantially true. And a couple of them, he said he couldn't find that they were substantially true, but he found they were contextually true. And what that means in this case is the context is reputation when we're talking about defamation. And because such serious allegations — allegations of murder — were found to be substantially true, war crimes, the fact that he couldn't find the substantial truth in a couple of other allegations, including an allegation that Ben Roberts-Smith bashed his then lover, the judge said that could not further damage his reputation, because the reputational damage of the imputations he found were true, was so great that the others didn't matter. And he dismissed Ben Roberts-Smith's whole case.

RUBY:

Well, let's talk about those allegations then, that were first published in the Nine papers, beginning back in 2018. These serious allegations of murder and war crimes, that have been found to be true. What are the details of those events as reported?

KAREN:

Well, yes, this was the work of Nick McKenzie and Chris Masters primarily, and also their colleague, David Wroe, at the Nine newspapers. And it was a series of feature stories detailing incredible allegations. At the heart, there were six alleged murders that were examined in this case. And the judge found that four of those allegations were substantially true.

Now, one of the key allegations here that got a lot of attention, related to an incident in 2009 when Ben Roberts-Smith and other Special Forces soldiers went to a compound, a Taliban compound, that had been codenamed Whisky 108. Now, there was evidence before the court that there were two men who came out of a tunnel in that compound. And the allegation was that Ben Roberts-Smith killed one of those men. It was a man who had a prosthetic leg, and directed another soldier, a junior, to kill the second man in a form of, a sort of, a blooding or an initiation ritual. Now, he told the court there weren't any men in the tunnel. He said there were some insurgents who were killed lawfully, but that they were not unarmed, and they were not ordinary Afghan civilians, citizens. And this is a key point because the laws of war govern exactly what you can do as a soldier in a circumstance like that. If someone is posing a threat, someone is armed and someone can be proven to be an insurgent, then it is lawful to kill them. But if they are not posing any immediate threat, then it is unlawful. And this is what the court found in this case. It found that Ben Roberts-Smith unlawfully killed this man, and ordered someone else to kill the second man, and then took the prosthetic leg back to the soldier's quarters and had his fellow soldiers, including back in Australia, use it as a novelty drinking vessel? So there was a sort of a celebratory aspect to what had occurred. In another of these incidents, Ben Roberts-Smith was said to have ordered an Afghan ally to kill an Afghan man, a prisoner they were questioning who wasn't demonstrating signs of violence. And the court found the newspapers proved those allegations.

RUBY:

So, Karen, let's talk about the third incident, the most high profile, I think, of all of these killings, the killing of Ali Jan. A lot of the evidence at the trial centred around his death. And there were these conflicting accounts about what happened. But tell me about what was proven.

KAREN:

Well, that's right. The killing of Ali Jan has become the one incident that has really put the human face, I guess, in terms of the Afghans, to this whole event. And that is a murder that took place in September of 2012, in Darwan, in Afghanistan. And it is a murder in which Ben Roberts-Smith engaged an Afghan civilian, was interviewing him, took him to the edge of a cliff, and then kicked him off the cliff. Now, he was badly injured in the fall, but still alive at the bottom of the cliff. The court heard that he was then dragged away, and that with Ben Roberts-Smith sort of overseeing the events, another soldier was encouraged to shoot him, and killed him. Now, that event was also found to have been proven. And in finding these events substantially true, Judge Besanko found that Ben Roberts-Smith had broken both the legal and the moral rules of war, and had disgraced his country.

RUBY:

It's a damning assessment of Ben Roberts-Smith’s actions, and a real reversal of his position and reputation, isn't it? Because before all of this happened, before it was made public, he was hailed as a war hero. He was a Victoria Cross recipient. He was arguably Australia's most decorated veteran. So as far as his reputation goes, there was a lot at stake for him, a lot riding on this outcome. So tell me a bit about what this decision by the Federal Court means for Ben Roberts-Smith.

KAREN:

Well, in terms of his future, that's the big question, isn't it?

Interestingly, Ben Roberts-Smith went to the court every day for the trial, and we know this was an incredibly long trial. There hasn't been a defamation case like it in Australian history. It was 100 days of evidence, more than 40 witnesses, and he attended every day. And when the judgement came down on Thursday, he was nowhere to be seen. Media had reported he was in Bali on holiday, so on Judgement Day he did not show up.

A lot of people, including me, were puzzled, really flummoxed at why he brought this action at all because of the risk it posed to what had been a shiny reputation.

He had taken the decision, I guess, because the publication of these stories had already really changed the public view of a man who had been up until that point, the soldier from central casting, he was the pinup for the Defence Force, and political leaders used him that way. They associated themselves with him. He was squired about and held up as the great example of Australian soldiering.

Archival tape – David Koch:

“The prime minister calls him one of our greatest living Australians. Let's meet Corporal Ben Roberts-Smith, who joins us from Perth. Good morning to you. Congratulations. Well, mate, you looked decidedly uncomfortable at the ceremony yesterday, is it hard for you to be singled out?”

Archival tape – Ben Roberts-Smith:

“Yeah. Look, it's not the normal thing for us, obviously, you know, to be singled out amongst a group of blokes that fought so well is very humbling.”

KAREN:

He became a celebrity. He was awarded with Australia Day Honours. He was named the chair of the National Australia Day Council. He was made Father of the Year. His portrait hangs in the Australian War Memorial. His uniform is on display there. So, you know, he really became the celebrity soldier, and he went into corporate life. He was highly paid to go on the speaking circuit. And then he took a job with Kerry Stokes of Seven West Media, running his media operations at Channel Seven in Brisbane. And so this is a high profile individual, much lauded and awarded, who then parlayed his military success into a high profile and successful career in media, with a very powerful media mogul in Kerry Stokes as his backer. And so it was a long way to fall. And that is why I guess he decided to bring this defamation action. But now, with all of these events having been ventilated in court with his former colleagues standing up and telling what happened, as distinguished soldiers, he has been proven to be a liar and a war criminal. And that is an extraordinary turn around in the man's reputation.

RUBY

We’ll be back in a moment.

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RUBY:

So, Karen, as you say, a court has determined that it's been proven now that Ben Roberts-Smith is a liar and a war criminal. But this was a defamation trial, not a criminal trial. How likely is it that we will see a criminal case pursued now? Because certainly while this is a victory for the Nine papers, a defamation outcome means a lot less for the families of those who were killed. So surely they'll be looking for a different measure of justice here.

KAREN:

Well, that's right. And I think the point has been made in the wake of the judgement, that while this is vindication in terms of truth of what the special forces witnesses said they saw, and of what the Afghans said they saw, and in that sense, it is vindication for the families. It's not justice yet. So there will be an examination of whether there need to be criminal charges, and that's going to be a very long, slow process, because, as we've said, the burden of proof is much higher in criminal proceedings. More has to be proven. It's not as straightforward, even as it was in this defamation case. So there's a lot to go yet before we ever see, if we ever see, a criminal charge laid. I'm sure that criminal proceedings would be what the Afghan families involved in this defamation case would want to see. And I don't doubt that some of the special forces soldiers who gave evidence against Ben Roberts-Smith would also like to see. So these are soldiers we have to remember, who did serve with distinction, and who have been very troubled for a long time by what they saw. You know, for those who who hear the findings in this defamation trial and say, “oh, you don't understand the fog of war, the dangerous environment, the snap decisions that have to be made, you can't understand unless you've served in battle”, these distinguished soldiers who gave evidence understand very well the difference between what is right and wrong on a battlefield. Sure, there are sometimes decisions that have to be made in the heat of battle, judgements — snap judgements — that can be questioned later. But these were not those. These were examples of decisions that were made to take the lives of unarmed and defenceless Afghan civilians, and then to pretend that they posed a threat. And that's why you saw so many Special Forces soldiers lining up, people of protected identity, giving evidence in difficult circumstances, to testify that what happened was wrong and was in breach of the laws of war. And they understand what those laws are very well.

RUBY:

Yeah. Can we talk a bit more about what this means for the Australian military? Because on the one hand, the truth of war crimes, it can be read as an indictment on the culture at the SAS when Ben Roberts-Smith was there. But as you point out, on the other hand, the fact that so many SAS soldiers blew the whistle, shows that there was disquiet and a desire to do the right thing.

KAREN:

Well, I think, Ruby, it'll have a mixed impact. I'm sure on one level, because having this confirmed by a court brings shame on the military, There will be, maybe, some damage to morale in that respect, that the fact that a court has found that a soldier of such previously high standing has engaged in these activities is further confirmation of what emerged out of the Brereton inquiry from three years ago, that that really first started to formalise the allegations about war crimes involving Australian soldiers.

Archival tape – Unknown:

"These findings allege the most serious breaches of military conduct and professional values. The killing — the unlawful killing — of civilians and prisoners is never acceptable."

KAREN:

But also, it does vindicate the truth of those soldiers that I've spoken about, the Special Forces soldiers who served with honour and distinction, and who believe very strongly in those as core principles underpinning what they do on a battlefield, and the way they serve and represent their country. So I would hope that Australian soldiers would see this decision as a positive thing because it does underline the difference between what is honourable and lawful, and what is not. And they, I am sure, are all seeking to serve their country in an honourable and lawful way. The profession of arms has always been described thus, and so Soldiers in Australia wearing the Australian uniform should see this as a good thing, that the truth is coming out and that we can very clearly understand the difference between right and wrong and celebrate the valour and the sacrifice of those who served their country in the way that was intended.

RUBY:

And Karen, this result is obviously a huge vindication for Nine newspapers and the journalists who wrote those stories. Ben Roberts-Smith, of course, might still appeal, but how significant do you think that this moment is for press freedom and for the future of investigative journalism in Australia?

KAREN:

I think it's very significant. I think if the result had gone the other way, it would have had a huge chilling effect on public interest journalism. We already have defamation laws in this country that make it much more difficult in Australia, than in other parts of the world, to engage in this kind of journalism. And defamation laws are often used to stifle public discourse, and the airing of serious and important information and allegations. Complainants will often lodge defamation proceedings just to threaten a journalist to get them to back off. So this result is very important in that regard. But I think if we want things to improve, we really need changes to those defamation laws. We really need a serious review of them. And this whole case is evidence of the importance of the role of journalism, that sometimes it is only through journalism that we get to know things that are done in our name in secret. And I think that's a very important function in a thriving democracy. And so I think the day of judgement, in the case of Ben Roberts-Smith, was a good day, if not for him, then for the rest of the country.

RUBY:

And just finally, you've covered the war in Afghanistan, you've been there, you've interviewed soldiers, families of soldiers, and Afghan citizens. These war crimes, how do they affect the legacy of Australia's involvement in the conflict?

KAREN:

I think, of course, they tarnish the legacy. They're watched very closely by our allies, and those who might not be so friendly in countries, in other parts of the world. We are held to account for these allegations, these shocking allegations. And we know that the Office of Special Prosecutor is examining many allegations against other soldiers. We should remember that most Australian soldiers served with distinction, as I've said, and not all soldiers should be tarnished with this legacy. But certainly it's important that we have a clear eyed view of what happened in Afghanistan. We examined the truth of it. We don't just end the war, close the book, and erase the history and move on. And I think we have a habit in this country of doing that at the end of a conflict, that maybe didn't end in the manner that we would have hoped. It happened a bit with Vietnam, and we're at grave risk of it happening with Afghanistan. Unless governments and military leaders take a long, hard look at exactly what went on, and that we in the rest of Australia are allowed to know the truth of what went on in Australia's longest war.

RUBY:

Karen, thank you so much for your time.

KAREN:

Thanks Ruby.

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Ruby:

Also in the news today…

The Australian Federal Police has submitted a new brief of evidence to Commonwealth prosecutors over allegations Roberts-Smith intimidated witnesses who testified at his defamation trial.

In the tapes Roberts-Smith reportedly criticises what he characterised as the SAS’s code of silence, saying quote: “It’s real simple. I stick to the fucking code mate, 100 percent and I have.”

And

The death toll continues to rise in India’s deadliest train crash in two decades.

The crash took place when one passenger train switched rails and collided with a freight train, which in turn was knocked into derailing another passenger train.

The combined number of passengers involved in the crash is believed to be 2000.

I’m Ruby Jones, this is 7am. See you tomorrow.

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