Radio host Ben Fordham put a lot of questions to alleged war criminal and former SAS soldier Ben Roberts-Smith during his interview on radio 2GB on Thursday, but he did not challenge any of the answers over the 2½ hours. Here are some of the facts.
On the murder allegations
Roberts-Smith: “One of the things that the media really did well, unfortunately, was try and convince them that civilians had been killed ... that has actually, in no way, ever been proven.”
Fact: The judge in the defamation case, Justice Anthony Besanko, did find that one victim in particular, Ali Jan, was a civilian. Ali Jan, the judge found, cultivated crops. He had some cattle and also sold wood. He was married with children. He was not connected to the Taliban. The evidence of Afghan witness Mohammed Hanifa on this was accepted by the judge.
Besanko’s findings explicitly state that Roberts-Smith “murdered an unarmed and defenceless Afghan civilian by kicking him off a cliff and procuring the soldiers under his command to shoot him”.
The other three people Roberts-Smith was found to have murdered were very likely members of the Taliban – a fact acknowledged in the original reporting. The key question was always whether they were unarmed, under control and out of action at the time they were killed, or still posing a threat.
Besanko’s finding, which backed the media reporting, was that three of Roberts-Smith’s victims were what the Australian military called “PUCs”, or Persons Under Control. Common Article 3 of the Geneva Convention “explicitly prohibits violence to life and person, cruel treatment, torture, and murder of persons who are taking no active part in hostilities, including those placed under detention or control”.
Asked about this during his evidence at the defamation case, Roberts-Smith acknowledged this was a crime. In the 2GB interview, he reiterated it.
“Do you accept that shooting a prisoner is a war crime?” he was asked by Fordham.
“Yes,” he replied.
On the practice of using “throw downs” to frame victims as combatants.
“We were told to put weapons on the bodies for the photographs because they wanted it all in one photo, so we could send it back. So moving things around … it was actually a directive from the leadership.”
Fact: Roberts-Smith is portraying the practice as simply rearranging the scene to put everything in one photo frame. This was the order from above to make sure they could get their reports right, he said.
The actual allegation, made in the Inspector-General of the Australian Defence Force investigation, in the media, and by many SAS witnesses during the defamation case, is much more sinister. They gave evidence that some soldiers carried items in their packs so they could posthumously frame dead civilians as soldiers.
This carries the implication of premeditated murder, and a posthumous cover-up.
Throw-down items included folding-stock AK-47s, Russian grenades, spare webbing and handheld radios.
As for being orders from “leadership”, two witnesses at the defamation trial testified that it was Roberts-Smith himself who instructed people in the practice.
During 2012 pre-deployment rehearsal, they say, the towering lance corporal explained how to put a throw-down weapon or equipment on a body to photograph to make the action appear legitimate when it actually was not.
On the defamation case
“The stories that I sued on were not the stories that I ended up having to defend in court … the same basic story, but we’re talking about things that would evolve to meet what needed to be proved.”
Fact: The implication from Ben Roberts-Smith here is that whenever he successfully defended an allegation in the reporting, the story would just morph to fit a new narrative.
The stories he sued over, and a number of the accusations in the court case, were the same. All the original allegations in the reporting were successfully defended by the newspapers, and particularly the murders at Darwan and Whiskey 108.
It was only because Roberts-Smith sued for defamation that journalists from this masthead were able to use the legal process he’d initiated to subpoena new information, including new witnesses. That allowed them to introduce additional evidence and ultimately allege Roberts-Smith had been involved in seven murders, six of which they proceeded with in the case itself.
Without him taking the legal action, a number of those allegations would likely never have emerged.
In the end, Justice Anthony Besanko found four murders substantially true, including those included in the original reporting.
On legal procedure
“You don’t have to prove that it’s true”. It was enough “to prove that they believe it, or that it might have happened.”
Fact: This gives the impression the defamation judgment was based on thin evidence. That is simply false.
Defamation is a civil procedure, and the threshold for proof is on the “balance of probabilities”, which essentially means it’s more likely than not that something happened. But in cases of this seriousness – where murder is being alleged – the “Briginshaw principle” applies.
This means “inexact proofs, indefinite testimony, or indirect inferences” are not enough, and that, for grave findings – such as murder or criminal conduct – the court requires clear, cogent, and strict proof, actual persuasion, and proper weight given to the presumption of innocence.
In his judgment, Besanko applied the principle vigorously to find the murders at Whiskey 108, Darwan and Chinartu, as well as Roberts-Smith’s campaign of bullying and unlawful assaults, were proven. Other allegations, he said, did not meet the threshold.
The newspapers’ evidence included eyewitnesses, physical or photographic evidence and contemporaneous records that meant, Besanko wrote, “I am satisfied that the proof is clear and cogent.”
It’s also worth noting, without breaching the presumption of innocence, that after an exhaustive, five-year criminal investigation led by one of Australia’s most eminent jurists, Mark Weinberg KC, the Federal Office of the Special Investigator believes it has enough hard evidence to charge Roberts-Smith with five counts of war crimes – murder under the criminal standard.
On the newspapers’ witnesses
“I was so naive in terms of the civil system. I just had no idea how it plays out … I didn’t understand that game. Witnesses were paid to give evidence and others paid not to give evidence.”
Fact: Roberts-Smith was advised and represented by the best lawyers Kerry Stokes’s money could buy, including Australia’s most aggressive defamation lawyer, Mark O’Brien, and a brace of QCs. It cost Stokes “upwards of $30 million”, the former soldier told Fordham.
As for paying witnesses, the only allegation Roberts-Smith’s team made related to three poor Afghan farmers who were taken out of their remote villages to Kabul and put up in a hotel and fed while they waited for the court’s time.
Besanko found this was not a motive for them to be dishonest. Routine travel and living assistance for people travelling to give evidence did not undermine their credibility, the judge found.
On the other hand, Besanko made significant adverse credit findings regarding Ben Roberts-Smith paying the legal fees of his own key witnesses. He found the Seven Network paid hundreds of thousands of dollars in legal fees for witnesses, Persons 5, 11, and 35 – a bill that was added to Roberts-Smith’s personal loan facility with Seven Network. Roberts-Smith, the court found, tried to hide this fact, perhaps because, as Besanko found, it created an obvious potential for the witnesses to feel obliged to co-operate or maintain a particular narrative.
Roberts-Smith also tried to induce others to either give evidence, or avoid doing so. This included typing up threatening letters and arranging for a private investigator to have them delivered to potential witnesses.
He also called one man to pass on a message to another, saying “You tell that c---, he’d better not say anything, otherwise I’ll get him charged for war crimes.”
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