Ben Roberts-Smith, Australia’s most-decorated living soldier, has lost an appeal against a landmark defamation judgement which found he committed war crimes.
A judge in 2023 ruled that news articles alleging the Victoria Cross recipient had murdered four unarmed Afghans were true, but Mr Roberts-Smith had argued the judge made legal errors.
The trial was the first time any court assessed claims of war crimes by Australian forces.
A panel of three Federal Court judges upheld the original verdict.
Mr Roberts-Smith, who left the defence force in 2013, maintains his innocence and has not been charged over any of the claims in a criminal court, where the burden of proof is higher.
He sued three Australian newspapers over articles alleging serious misconduct during his deployment in Afghanistan between 2009 and 2012 as part of a US-led military coalition.
At the time the articles were published in 2018, Mr Roberts-Smith was a national hero, having been awarded Australia’s highest military honour for repelling a Taliban attack on his Special Air Service (SAS) platoon.
The 46-year-old argued the alleged killings occurred legally during combat or did not happen at all, claiming the papers ruined his life with their reports.
His defamation case, dubbed “the trial of the century” in Australia, lasted over 120 days and is now rumoured to have cost up to A$35m ($22.5m; £16.9m).
Federal Court Justice Antony Besanko dismissed the case against The Age, The Sydney Morning Herald, and The Canberra Times, ruling it was “substantially true” that Mr Roberts-Smith had murdered unarmed Afghan prisoners and civilians and bullied fellow soldiers.
He also found that Mr Roberts-Smith lied to cover up his misconduct and threatened witnesses.
Additional allegations that he had punched his lover and committed two other murders were not proven to a “balance of probabilities” required in civil cases.
The crux of the appeal case was that Justice Besanko did not give enough weight to Mr Roberts-Smith’s presumption of innocence, his barrister Bret Walker, SC said.
There is legal principle requiring judges to be cautious when dealing with civil cases involving serious allegations and stakes.
Mr Walker argued that the evidence presented fell short of the required standard.
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