Photographs featuring Ben Roberts-Smith alongside US soldiers holding an artificial limb known as “Das Boot”, have come back to haunt the decorated war veteran amid his defamation lawsuit against Nine newspapers.
In December 2020, TheAge and The Sydney Morning Herald obtained two photos of Mr Roberts-Smith amid investigations into the soldier regarding war crimes.
The images featured the Victoria Cross recipient holding a can of Heineken while posing with US soldiers at a makeshift Afghan bar coined the Fat Lady’s Arms.
But there was one prop in both images that would later form part of Mr Roberts-Smith’s loss in a defamation case against the newspapers.
A prosthetic leg used as a novelty drinking vessel was snapped in the possession of US soldiers who stood next to Mr Roberts-Smith in two separate images.
The prosthesis belonged to a suspected Afghan militant who Justice Anthony Besanko found, on the balance of probabilities, was shot by Mr Roberts-Smith in 2009, and was killed because the Australian soldier thought he was a member of the Taliban.
The fake limb was sometimes mounted on a wooden plaque with an Iron Cross.
The soldier’s lawyer at the time, Bruce McClintock, claimed his client was “disgusted” by the “souvenir” body part and didn’t participate in the drinking activities associated with it.
He told the Federal Court in 2019 Mr Roberts-Smith “never drank from that thing … because he thought it was disgusting to souvenir a body part, albeit an artificial one from someone who had been killed in action”.
However, the Nine newspaper mastheads begged to differ, writing in an article the photographs were “at odds” with such claims.
Similar opinions made by investigative journalists at the media company about Mr Roberts-Smith, prompted him to file a lawsuit for defamation which he lost on Thursday.
Justice Anthony Besanko who heard Mr Roberts-Smith’s long-running case against Nine newspapers, found some of the imputations across six articles by The Age, The Sydney Morning Herald and The Canberra Times were substantially true.
This included the allegation that Mr Roberts-Smith “committed murder by machine gunning a man with a prosthetic leg” and he was “so callous and inhumane” that he brought the prosthetic back to Australia and encouraged other soldiers to use it as a novelty drinking vessel.
War crime claims ‘proven’
A number of other serious claims were substantiated by Justice Besanko including how the soldier bashed an unarmed Afghan in the face and kneed him in the stomach, authorised the assault of an unarmed Afghan in custody and his involvement in a bullying campaign against a small and quieter soldier.
While not every murder allegation was established by the newspapers, the judge found that two key killings had also taken place.
Justice Besanko found Mr Roberts-Smith’s actions on the mission to Whiskey 108 on Easter Sunday in 2009 were found to be substantially true, meaning he was found to have allegedly “frog marched” a man with a prosthetic leg out of a secret tunnel at the compound.
He has been found by the court to have shot the man with a machine gun in the back.
As well as being found by the judge to be a murderer, Mr Roberts-Smith was also found in the judgment to have “broken the moral and legal rules of military engagement and is therefore a criminal”.
The judge also found he disgraced his country and the Australian Army through his conduct.
Justice Besanko also found the murder of Ali Jan at Darwan in September 2012 to be substantially true, where Mr Roberts-Smith allegedly kicked the detained shepherd off a cliff while he was handcuffed.
It is alleged Mr Roberts-Smith marched the farmer to stand above the 10-metre-high cliff before kicking him onto a dry riverbed below.
The articles allege the farmer was then dragged to a cornfield and shot by either Mr Roberts-Smith or another soldier called Person 11. The killing was likened to the movie 300 in which a Spartan warrior kicks an enemy into an abyss.
What’s next for Mr Roberts-Smith
The full judgment is yet to come after publication of the full reasons for the long-awaited outcome was delayed following an 11th-hour decision from the commonwealth.
Justice Besanko was asked to delay publishing of the documents until Monday so it can revise it for any disclosures of sensitive information.
In addition to Thursday’s decision, a further 50 pages of “closed court” judgment was to be delivered to a select number of people.
Mr Roberts-Smith was not present when the monumental decision was handed down, rather spending his time poolside at a $500-a-night Bali resort. According to 9 News, the Victoria Cross recipient checked into the hotel on Tuesday.
He is not legally required to be in court for the decision and the trial is estimated to have cost upward of $25 million.
The current lawyer for Mr Roberts-Smith, Arthur Moses SC, said he would assess the lengthy judgment and requested an extension to appeal, on the basis Mr Roberts-Smith chose to do so.
The matter will return to court for a directions hearing on June 29.
– With NCA Newswire