Andrew L. Urban
Roberts-Smith’s central position in evidence at the 2003 defamation trial was that the newspaper allegations were false and that all killings he was involved in were lawful engagements with insurgents during combat operations in Afghanistan. He denied murdering prisoners or ordering unlawful killings. But Justice Besanko rejected significant parts of Roberts-Smith’s account and found that several allegations of unlawful killings were proven to the civil standard of proof. He also found Roberts-Smith was not a reliable witness in some respects and that parts of his testimony were untruthful. It was a fateful fork in the road that leads to the criminal trial.
That was the fork in the road for Roberts-Smith, when Justice Besanko parted ways with him. “I am unable to accept the applicant’s evidence where it conflicts with the evidence of Persons 5, 6, 11, 14 and 41.” Meaning the judge found several SAS witnesses to be more credible than Roberts-Smith. The judge concluded Roberts-Smith’s recollections were shaped by the litigation rather than being reliable memories of events. Presumably the other witnesses’ recollections were unshaped by litigation …
Besanko’s no doubt sincere if questionable conclusion propelled Ben Roberts-Smith along the road to a catastrophic show-down with the legal system and Australian society – primed on the eve of Anzac Day 2026. Bottom line: Besanko didn’t believe Roberts-Smith. He made a judgement against Roberts-Smith’s character. But he also failed to recognise the Taliban’s character. Read on.
In what is known as Operation Whiskey 108 (2009), the prosthetic leg killing, Besanko rejected Roberts-Smith’s account that the Afghan man was a combatant. (All Taliban are always combatants…see below.) The judge accepted the testimony of other SAS soldiers that the man was an unarmed detainee pulled from a tunnel and then shot.
Competing accounts of this central charge were presented to the court.
Roberts-Smith told the court that:
- during the clearing of a compound he encountered a man moving through the area
- the man was believed to be an insurgent
- he shot the man during a lawful combat engagement
- the man was not a detainee or under control
- the body was later moved only for security reasons (for example to check for explosives)
Witness version – several SAS soldiers testified that:
- a man was discovered hiding inside a tunnel
- the man was unarmed
- Roberts-Smith pulled him out of the tunnel
- shortly afterwards Roberts-Smith shot the man at close range
- the man had a prosthetic leg which was later taken from the body
Justice Besanko described the witness accounts as broadly consistent with each other on the critical elements of the event.
As Carl Sagan famously said, “Extraordinary claims require extraordinary evidence.”
Re the Dahwan “cliff incident”; Besanko accepted the version given by multiple SAS witnesses over Roberts-Smith’s denial that he kicked a detainee off a cliff. “I find that the applicant kicked Ali Jan from the cliff and that he was then shot.” (According to special Forces Operator Scott Jones, it wasn’t actually a cliff but a slope.)
It would be impractical in this context to go through the lengthy transcripts of that defamation trial (the full transcript of BRS’s testimony alone runs to thousands of pages). But I wish to raise a reasonable doubt about Justice Besanko’s judgement, which was based on the balance of probabilities. Judges are as error prone as anyone as a study by Griffith University has shown. The study, into the Causal and Contributing Factors of Wrongful Conviction in Australia, led by Rachel Dioso-Villa, found erroneous judicial instructions were present in 32% of such cases. That was the second highest factor, after police inputs at 55%. False witness testimony is present in 17% of wrongful convictions, which is relevant in a case relying entirely on witness testimonies.
NEWS FLASH
In a stunning development in Ben Roberts-Smith’s impending war crimes trial, prosecutors have revealed that four Australian soldiers who have admitted complicity in executing detainees have been granted immunity from prosecution in return for their evidence. The Commonwealth Director of Public Prosecutions has provided formal undertakings to the four witnesses, three of whom – identified by the court pseudonyms Person 4, Person 56 and Person 66 – are directly involved in the Roberts-Smith prosecution. Stephen Rice, The Australian
The question of killings v lawful killings in a conflict between a regular army and a rabble of terrorist insurgents (the Taliban) will forever be debated.
A central element of Taliban ideology is armed struggle against foreign military presence in Muslim lands. The movement framed its insurgency against the United States, NATO forces, and the Western-backed Afghan government as a religious obligation. This mindset doesn’t take tea breaks from its armed struggle.
Let us accept that all of the Taliban are always combatants. The ideology of the Taliban is a form of militant Islamist fundamentalism rooted in a strict interpretation of Sunni Islam, combined with elements of Afghan tribal conservatism and political nationalism. You can disarm a Taliban fighter but you can’t stop him wanting you dead.
During The Troubles in Northern Ireland, members of the IRA were always deadly combatants, armed or not.
Released on bail on April 17, 2026, Ben Roberts-Smith now faces years awaiting his criminal trial for the war crimes murder of five Afghanis. In recent days we have published the sensational video interview on 2 Worlds Collide and an edited transcript of that interview with Special Forces Operator Scott Jones. We now publish a summary of what Roberts-Smith said in the witness box in 2023 at the defamation trial he brought against the media companies behind The Sydney Morning Herald, The Age and The Canberra Times.
Roberts-Smith gave extensive evidence in the witness box over eleven days. The trial ran more than 110 days and involved dozens of witnesses before the judgment of Anthony Besanko in June 2023.
Roberts-Smith’s central position in evidence was that the newspaper allegations were false and that all killings he was involved in were lawful engagements with insurgents during combat operations in Afghanistan. He denied murdering prisoners or ordering unlawful killings and said the reporting had destroyed his reputation.
The central problem with both Besanko’s judgement and the upcoming trial is that the allegations and the rebuttal of them are beyond the competence of our courts to assess them fairly, almost two decades after the fact, in the context of competing moral and legal factors. And, as we argue here, in the context that Taliban fighters are always combatants as far as they are concerned.
Remember the three Australian soldiers killed in the ‘green on gold’ 2012 Uruzgan ‘insider’ attack; James Martin, Stjepan Milosevic, and Robert Poate. An Afghan soldier who was working with the Australians suddenly opened fire on them at close range inside the base. The attacker was wearing an Afghan National Army uniform and had access to the compound because he was part of the partnered force. Like I said … always a combatant.
The shooting occurred when Australian soldiers were relaxed and off duty at the end of the day. That’s the enemy our boys faced.
If one accepts that lawyers as a class are the most venal in society and then acknowledge that “judges” are singularly hoisted from their pool, then reaching the conclusion that the “law” is being directed by impostors and self-interested charlatans, is self evident.
At the Fork in the Road Doubt, War, and the Limits of Civil Justice
The case of Ben Roberts-Smith sits at a fraught intersection of law, war, and memory. Following the 2023 defamation judgment delivered by Anthony Besanko in the Roberts-Smith v Fairfax Media proceedings, Australia now finds itself confronting a deeper question: what can courts truly know about events that occurred in the chaos of combat, years after the fact?
Justice Besanko found, on the civil standard of proof (balance of probabilities), that several allegations of unlawful killings were substantially true.[1] Central to that conclusion was a rejection of Roberts-Smith’s evidence in favour of multiple SAS witnesses, whose accounts were described as broadly consistent. Yet consistency is not the same as reliability and that distinction matters.
The Problem of Witness Evidence in War
The case against Roberts-Smith, both in the civil proceedings and the anticipated criminal trial, rests overwhelmingly on witness testimony. There is little in the way of contemporaneous forensic evidence. No crime scenes were preserved. No independent investigators attended at the time. What remains are recollections often formed, discussed, and reinforced over years.
Psychological research has long established that memory is not a fixed record but a reconstructive process. The work of Elizabeth Loftus demonstrates how repeated questioning, suggestion, and group dynamics can shape recollection.[2]
In military environments, these risks are amplified. Soldiers operate under extreme stress, often in ambiguous situations, and later recount events within tight-knit units where narratives can converge. That convergence can appear as consistency—but may equally reflect contamination. Justice Besanko acknowledged that Roberts-Smith’s recollections may have been influenced by the litigation process. What is less clear is whether the same scrutiny was applied, with equal force, to the witnesses whose evidence was ultimately preferred.
Civil Findings Are Not Criminal Proof
A critical point often overlooked in public discussion is that the 2023 judgment was not a criminal conviction. It was a civil determination. The distinction is not technical it is fundamental:
Civil standard balance of probabilities – Criminal standard: beyond reasonable doubt.
Findings made under the former do not automatically translate into proof under the latter. Indeed, Australian courts have long recognised that serious allegations even in civil cases require careful and cautious evaluation (the Briginshaw principle).[3] The danger lies in the public conflation of these standards. Once a judge has made adverse credibility findings, the narrative hardens. The presumption of innocence, while formally intact, becomes practically fragile.
Immunity and Incentivised Testimony
Recent reporting indicates that several key witnesses in the criminal proceedings have been granted immunity in exchange for their evidence.[4] This introduces a further layer of complexity. Witnesses who admit involvement in unlawful acts but receive protection from prosecution are, by definition, incentivised. Their testimony may be truthful but it is not disinterested. Courts must therefore approach such evidence with caution, recognising both its potential value and its inherent risks. Historically, incentivised testimony has been a recurring feature in wrongful convictions, particularly where corroboration is limited.
The Combat Context
Under international humanitarian law, the status of an individual is not determined by ideology but by conduct at the time. A person actively participating in hostilities may be a lawful target. A detainee, or a person hors de combat, is protected. The legal question in cases like the “prosthetic leg incident” or the “Dahwan cliff incident” is therefore highly specific; what was the status of the individual at that moment? That is precisely the kind of question that becomes hardest to answer years later, relying solely on human memory.
A System at Its Limits
Courts face real difficulty adjudicating events of this nature long after they occurred. But the conclusion to draw; is not that the accused must therefore be guilty or innocent. It is that the system itself is operating at the edge of its competence. The further we move from contemporaneous evidence, the more the process becomes an exercise in narrative selection. Judges and juries are asked to choose between competing stories, each shaped by time, perspective, and interest. In such circumstances, doubt is not a weakness it is an inevitability.
It is not simply a divergence between Roberts-Smith and Justice Besanko. It is a divergence between: civil findings and criminal proof, memory and fact, warfare and law. As Australia moves toward a criminal trial, the burden will shift dramatically. The question will no longer be which version is more probable, but whether guilt can be established beyond reasonable doubt. That is a far steeper road. And on that road, the presumption of innocence must remain more than a formality it must be the starting point.
Footnotes
[1] Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555.
[2] Elizabeth Loftus, research on memory reconstruction and suggestibility.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336.
[4] Reporting by Stephen Rice, The Australian, April 2026, regarding immunity granted to key witnesses.
I don’t know how much we can rely on international law in combat between uniformed soldiers and terrorists. I maintain that extreme ideology-driven combatants remain combatants in nature at all times. I realise that is a complex issue and quite controversial. Multiple views may all be arguable and valid.
Andrew,
I think you make a fair point about the complexity of it all. The kind of conflict you’re describing doesn’t fit neatly into legal frameworks, and I can understand why the distinction between “combatant” and “non-combatant” can feel blurred in those situations.
I also agree that people can come at this from different angles and still have reasonable views. It’s one of those areas where the reality on the ground and the way things are later examined don’t always sit comfortably together.
Appreciate you acknowledging how nuanced it is.