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Ben Roberts-Smith has failed to overturn findings that he likely engaged in war crimes while on deployment in Afghanistan.
The Victoria Cross recipient sued Nine newspapers and journalists Nick McKenzie and Chris Masters for defamation over their reports in 2018, which claimed he had committed war crimes.
But in 2023, Justice Anthony Besanko in the murder of four unarmed civilians when deployed in Afghanistan were substantially true.
Roberts-Smith launched an appeal against findings, which was over 10 days in February 2024.
After a year of waiting, the Full Court of the Federal Court dismissed his appeal on Friday.
They were persuaded that Nine’s defence was sufficiently supported by evidence and upheld Besanko’s finding that the war crimes claims were substantially true.
Roberts-Smith has been ordered to pay the newspapers’ legal costs. The cost of the defamation proceedings was tipped to exceed $25 million back in 2023.
Taking into account the subsequent appeal and interlocutory issues, the final bill could now be far higher.
Roberts-Smith may elect to continue the seven-year legal saga to the High Court in a last-ditch attempt to clear his name — but he would have to obtain special leave to make that appeal, and establish grounds for that.
In a statement released after the Federal Court’s findings, Roberts-Smith said his team would “immediately seek to challenge this judgment in the High Court of Australia”.
“I continue to maintain my innocence and deny these egregious spiteful allegations,” he said.
The allegations against Ben Roberts-Smith
The original decision found Roberts-Smith was complicit in the murder of four unarmed men while serving in Afghanistan.
The soldier first rose to prominence in 2011 after he was awarded Australia’s highest military honour, the Victoria Cross, for single-handedly taking out machine-gun posts to protect pinned-down colleagues in Afghanistan.
His reputation was tarnished by McKenzie’s explosive reports in 2018 alleging the former SAS corporal was complicit in war crimes.
The reports claimed Roberts-Smith machine-gunned a man with a prosthetic leg — which he then encouraged soldiers to use as a drinking vessel.
On the same day in 2009, Roberts-Smith was alleged to have ordered the execution of an elderly prisoner to “blood the rookie” during a raid on a compound known as Whiskey 108.
The former special forces soldier was accused of kicking a handcuffed prisoner off a cliff in the village of Darwan before dragging him to a creek and ordering his execution on 11 September 2012.
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Nine’s coverage claimed Roberts-Smith ordered another prisoner be shot and killed after a weapons cache was discovered in the village of Cinartu.
Besanko’s findings — upheld on Friday — were made on the balance of probabilities. Roberts-Smith has not been charged over the allegations.
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