Ben Roberts-Smith ruling sparks calls for exoneration of David McBride

Ben Roberts-Smith outside court

Australia's biggest defamation case for a generation concluded last week with Judge Athonly Besanko ruling that media outlets had indeed established that one of the country's most celebrated soldiers is a "war criminal", responsible for several murders of unarmed prisoners in Afghanistan.

On Thursday 1 June Besanko ruled that the newspapers had been right to report Ben Roberts Smith responsible for the murder of Ali Jan in 2012, two disabled prisoners at the "Whiskey 108" compound in 2009 and of a man being held prisoner in Chenartu in 2012.

Besanko found that allegations of several other murders had not been proven, but that newspapers had been right to report that Roberts-Smith had bullied and assaulted fellow soldiers, and had been justified in reporting on an incident of domestic violence, even if it had not been proven. The full ruling, published on Monday 5 June concluded that Roberts-Smith had lied about the events in question.

As the ruling was made in a civil trial, on the balance of probabilities, it does not amount to a criminal finding of guilt. Costs will be decided at a future ruling, but Roberts-Smith is likely to be held liable for millions of Australian dollars. The media outlets who successfully defended their case may also find themselves significantly out of pocket.

Ben Roberts-Smith was probably the best-known military figure in Australia. He had been awarded several military honours including the prestigious Victoria Cross for "conspicuous gallantry", which had entitled him to be present at the state funeral of Queen Elizabeth II. His uniform and medals are still on public display at Australia's national War Memorial.

Roberts-Smith had sued three major Australian newspapers - The Age, the Sydney Morning Herald and the Canberra Times - which had published stories from 2018 onwards alleging that he had engaged in war crimes and intimidated others under his command to do similarly. The newspapers had fought the defamation case on the basis that their allegations were true.

Over the course of a year, the Sydney court heard over 100 days of evidence, including from relatives of those murdered in Afghanistan. Former members of Australia's SAS were allowed not to answer certain questions about their activities in Afghanistan, so as not to incriminate themselves. Since the ruling, reports have emerged about Roberts-Smith's intimidation of witnesses, including former military personnel. An evidence file has reportedly been submitted to prosecutors by the Australian Federal Police.

David McBride vindicated but still facing prosecution

Among the remarks attributed to the disgraced former soldier in the evidence file are criticism of the Brereton Inquiry as “some broad sweeping thing that f---s everyone over.” The Brereton Inquiry, a four-year investigation by the Inspector-General of the Australian Defence Force, which published its final report in 2020, found credible evidence of 23 incidents involving the alleged unlawful killing of 39 Afghans by Australian special forces. Australian invesitgators are reportedly considering war crimes prosecutions.

Nevertheless, is highly ironic that, despite the findings in the Brereton Report and despite this week's findings that Australia's most decorated solider was responsible for war crimes, the only man currently facing prosecution in relation to the acts of Australian special forces in Afghanistan is David McBride - the man who blew the whistle on crimes and coverups and forced the issue into the public domain.

McBride, whose information formed the basis of the ABC invesitgative series The Afghan Files in 2017, was awarded Blueprint's 2022 International Whistleblowing Prize. While McBride's revelations about war crimes and coverups have been largely borne out by subsequent inquiries, he is still facing prosecution on several charges of theft and disclosure of defence information. In October last year, he failed in asserting protection from prosecution under Australia's whistleblower protection laws.

In the wake of the Roberts-Smith ruling, Australian Green Party defence and justice spokesman David Shoebridge called for Attorney General Mark Dreyfus to drop charges against David McBride, whose trial is scheduled to start on 13 November 2023.