High Court Delivers Final Blow to Ben Roberts-Smith’s Defamation Appeal in Landmark Case

Final Chapter in Historic Legal Battle

The High Court of Australia has declined to hear an appeal by Ben Roberts-Smith, bringing to an end a seven-year challenge of news reports that labelled him a war criminal. The decision marks the conclusion of a lengthy legal battle for Australia’s most decorated soldier.

Roberts-Smith had been seeking to appeal his 2023 Federal Court loss, where he had sued Nine Newspapers for defamation over reports claiming he was complicit in the murder of four unarmed civilians in Afghanistan. He contested Justice Anthony Besanko’s findings that the allegations were substantially true, arguing there was insufficient evidence to support such serious claims.

The Legal Journey

The case began in January 2019 when Roberts-Smith initiated defamation proceedings in the Federal Court against Fairfax Media (a Nine Entertainment subsidiary) and three journalists. Fairfax defended their reporting as “substantially true” and detailed a series of six unlawful killings allegedly carried out by Roberts-Smith in Afghanistan.

The original articles, published in 2018, included allegations that Roberts-Smith kicked a handcuffed man off a cliff and ordered his execution, and machine-gunned another prisoner. Justice Besanko found that Roberts-Smith had machine-gunned an unarmed prisoner in the back during a 2009 raid on a compound codenamed Whiskey 108, and stood silent while a rookie soldier was ordered to execute an elderly Afghan prisoner to be “blooded”.

Financial and Professional Implications

The legal proceedings have resulted in substantial costs, with the initial trial and appeal totaling $34 million. Adding to his challenges, Roberts-Smith, who holds Australia’s highest two military honours – the Victoria Cross and Medal for Gallantry – has been ordered to pay a lump sum of Nine’s legal costs for the unsuccessful Federal Court appeal.

Looking Forward

While the alleged war criminal has maintained his innocence and has not been charged with criminal wrongdoing, police have been working with the Office of the Special Investigator, an Australian investigation agency established in 2021, to build cases against elite SAS and Commando Regiments troops who served in Afghanistan between 2005 and 2016.