The High Court has thrown out Ben Roberts-Smith’s bid to appeal against his damning defamation loss, putting an end to seven years of litigation costing tens of millions of dollars.
On Thursday, the nation’s highest court refused the former Special Air Service corporal’s application for special leave to appeal against a decision of the Full Court of the Federal Court, which had rejected his bid to overturn a decision that found he had committed war crimes.
Ben Roberts-Smith at the Federal Court in Sydney in May.Credit: Sam Mooy
The Victoria Cross recipient is Australia’s most decorated living soldier. He launched the defamation case against The Age and The Sydney Morning Herald in 2018, alleging the newspapers defamed him in a series of articles that year suggesting he was a war criminal.
In a decision in 2023, then-Federal Court justice Anthony Besanko upheld the newspapers’ truth defence and found to a civil standard of proof that Roberts-Smith was complicit in the murder of four unarmed prisoners, including a man with a prosthetic leg, while deployed in Afghanistan between 2009 and 2012.
The Full Court – Justices Nye Perram, Anna Katzmann and Geoffrey Kennett – found the evidence was sufficiently cogent to support Besanko’s findings that Roberts-Smith murdered four Afghan men, contrary to the rules of engagement that bound the SAS.
The High Court refused special leave to appeal against that decision and ordered the former soldier to pay the newspapers’ legal costs.
At the centre of the case was an allegation that Roberts-Smith machine-gunned the man with the prosthetic leg outside a compound dubbed Whiskey 108 during a mission on Easter Sunday, 2009.
The Full Court said it found “no error” in Besanko’s approach, pointing to three eyewitness accounts given in court.
“The problem for [Roberts-Smith] is that, unlike most homicides, there were three eyewitnesses to this murder,” the Full Court said.
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