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The High Court will not hear an appeal by Victoria Cross recipient, Ben Roberts-Smith, ending a seven-year challenge of news reports that labelled him a war criminal.
The former special forces soldier had appealed his 2023 Federal Court loss after he sued Nine Newspapers for defamation over reports claiming he was complicit in the murder of four unarmed civilians in Afghanistan.
Roberts-Smith disputed Justice Anthony Besanko’s findings that the allegations were substantially true, arguing that was not backed up by sufficient evidence for such serious claims.
On Thursday, Australia’s highest court refused the former soldier’s special leave application to appeal with costs, ending his appeal options.
The recipient of Australia’s highest two military honours — the Victoria Cross and Medal for Gallantry — was ordered to pay a lump sum of Nine’s legal costs for the unsuccessful Federal Court appeal.
The costs of the 110-day trial and the 10-day appeal are estimated to exceed $30 million.
Roberts-Smith’s attempt to take his case to the High Court argued that the Full Court of the Federal Court had mistakenly assumed he admitted to certain allegations, which had not been reconsidered during the appeal process.
What were the claims about Ben Roberts-Smith?
The articles, published in 2018, included claims Roberts-Smith kicked a handcuffed man off a cliff and ordered his execution, and machine-gunned another prisoner.
Besanko found Roberts-Smith machine-gunned an unarmed prisoner in the back during a 2009 raid on a compound codenamed Whiskey 108.
Roberts-Smith also stood silent while a rookie soldier was ordered to execute an elderly Afghan prisoner so he could be “blooded”.
Besanko found one of the newspapers’ central claims — that Roberts-Smith had kicked an unarmed and handcuffed man, Ali Jan, off a 10-metre cliff and then ensured he was shot — was true.
As evidence of his guilt, Roberts-Smith attempted to cover up the unlawful killing at Darwan in September 2012 by removing Jan’s handcuffs and planting a radio alongside his lifeless body before he was photographed.
Roberts-Smith then told fellow SAS soldiers who witnessed the incident to stick to an approved story that Jan was a spotter whom they killed legitimately.
The Full Court of the Federal Court appeal judges firmly rejected the former SAS corporal’s claim that he did not know allegations of murder at a compound known as Whiskey 108 were true.
When dismissing his appeal in May, the Full Court of the Federal Court judges noted there were three eyewitnesses to the murder, which they said was a “problem” for Roberts-Smith.
The alleged war criminal has maintained his innocence and has not been charged with criminal wrongdoing.
