Ben Roberts-Smith
Ben Roberts-Smith (Image: AAP/Lukas Coch)

Ben Roberts-Smith told his defamation hearing in the Federal Court in Sydney today that hearing a lawyer describing him as a multiple murderer broke his heart.

“I spent my life fighting for my country and I did everything I could to make sure I did it with honour,” he said. “I cannot comprehend how, on the basis of rumour and innuendo, anyone could say that in a public forum. It’s devastating, quite frankly.”

Roberts-Smith is Australia’s most highly decorated soldier of the modern era, having been awarded the Victoria Cross in 2011 for bravery under fire.

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He launched the defamation lawsuit in 2018 against The Sydney Morning Herald, The Age and The Canberra Times which, he says, implicated him in war crimes and murder during his tour to Afghanistan from 2009 to 2012. He is also suing over a report which accuses him of an act of domestic violence against a woman (who was not his wife).

Before he took the stand, counsel for the newspapers, Nicholas Owens SC, said their case would involve several propositions.

The first is: “None, not a single one of the six murders Ben Roberts-Smith was involved in, involve the heat of battle or the fog of war. None of them involve judgment calls about a man putting his hand in his pocket” or making a split-second judgment call about whether someone was the enemy.

Owens described a “PUC” (person under control), a military term describing a person who had been placed safely and securely under custody of the army.

He said each of the six murders did not happen in those moments during which a soldier may need to be wary of a person feigning surrender or detonating a suicide vest. Each was unambiguously placed under the control of the armed forces.

One of the most important rules of engagement under which troops operated in Afghanistan and consistent with the Geneva Convention was once a person has been placed under control — no matter if he is a member of the Taliban — an Australian soldier cannot kill him. To do so is murder, Owens said.

Owens said that he would be calling 21 current and former members of the SAS: “There would need to be a powerful explanation for why they would be lying … and the suggestion that 21 men would be lying as a product of jealousy is implausible.”

He said some of them were involved in crimes themselves. Others had seen their friends’ lives destroyed over acts involving Roberts-Smith. “Others are honourable men who can remain silent no longer. It takes courage to speak up in an organ like the SAS .. In many cases, they have not spoken about what they saw in Afghanistan.”

Owens said Roberts-Smith had been engaged in a “pattern of behaviour calculated to undermine the integrity of some of the evidence”.

As well as arranging for threatening letters to be sent to potential witnesses, he also arranged for a total of four burner phones to be purchased so he could speak without being intercepted. Evidence from the phone companies would show that activity on these phones spiked around the time Roberts-Smith gave evidence to the inspector-general, who was conducting an inquiry into the army’s conduct in Afghanistan — including his own role.

Owens then addressed the allegations of domestic violence. He said the media outlets would be defending this with witness testimony and documentary evidence: text messages sent between the former soldier and the woman with whom he was conducting an extramarital relationship.

The story said Roberts-Smith had assaulted the woman but asked her to cover it up by saying that she had been intoxicated and fallen down the stairs. One of the messages from the woman said: “I feel awful. I made a doctor’s appointment. I sent my husband a photo.” Roberts-Smith allegedly replied: “Does he think I did it?” The woman replied: “He doesn’t believe I fell down the stairs … There are bruises on my thigh which will hopefully make the falling down the stairs stories more believable.” “Hopefully he believes you,” Roberts-Smith replied.

Roberts-Smith’s counsel, Bruce McClintock SC, asked him: “What is your attitude to domestic and family violence?”

“I think it’s deplorable,” he replied.

Roberts-Smith is supported in court by his parents, Len and Sue Roberts-Smith. 

The hearing continues.

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Peter Fray
Peter Fray
Editor-in-chief
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