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.