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Impact of Roberts-Smith defamation case ‘hypothetical’

Ben Roberts-Smith’s civil case loss is entirely separate to the prospect of any criminal case. (Dan Himbrechts/AAP PHOTOS)

By Duncan Murray in Sydney

DESPITE a Federal Court judge finding former SAS corporal Ben Roberts-Smith committed war crimes while serving in Afghanistan, the Victoria Cross recipient may still avoid facing criminal charges.

A defamation suit brought by Mr Roberts-Smith against “The Age”, “The Sydney Morning Herald” and “The Canberra Times” failed on Thursday, with Justice Anthony Besanko finding a number of articles published in 2018 implicating him in war crimes were substantially true.

Whether or not the 44-year-old is criminally liable, however, remains entirely separate and “hypothetical”, Neil James, a former soldier and executive director of independent watchdog the Australia Defence Association said

“A civil law case has nothing to do with criminal charges. Absolutely nothing,” Mr James added.

“Just because you lose a defamation case, doesn’t mean that you’re going to be charged with war crimes.

“They’re unconnected.”

Mr Roberts-Smith may still face criminal charges by the Australian Federal Police and Special Prosecutor but any outcome would likely take years, Mr James said.

Mr James added Australia needed to take action over war crimes outlined in a groundbreaking report by the Inspector-General of the Australian Defence Force released in 2020.

Conducted by Maj-Gen Brereton, the inquiry found credible information of 23 incidents in which 39 individuals were unlawfully killed by Australian soldiers in Afghanistan.

“The Brereton Inquiry… established that at least in some cases there were war crimes,” Mr James said.

“The fact that no Australian has yet been convicted of that doesn’t alter the fact that they happened.

“Therefore, the ADF and the country have to do certain steps to stop them happening again.”

Former SAS soldier Oliver Jordan Schulz, who was also deployed in Afghanistan, has been criminally charged over the allegedly killing an unarmed Afghan man in a wheat field in 2012.

Mr Roberts-Smith has not been officially charged with any crime and maintains his innocence.

“Whatever you may think of Ben Robert-Smith he’s the most highly decorated soldier of the Afghanistan war,” Mr James said.

“And irrespective of what you think of him in other ways, he’s got to be respected for that.”

The Returned and Services League of Australia said it respects the judicial process and declined to comment at length on Thursday’s result.

“The RSL feels for all veterans and their families, including Mr Roberts-Smith, that are impacted by the outcome of the Federal Court proceedings,” an RSL spokesman said.

“The RSL stands ready to provide appropriate support.”

Ben Roberts-Smith resigns from TV role

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2 Responses to Impact of Roberts-Smith defamation case ‘hypothetical’

cbrapsycho says: 2 June 2023 at 10:22 am

Dutton’s assertions today that most Australians admire Ben Roberts-Smith are empty claims with no evidence of truth. Perhaps because Dutton’s contacts support him (BRS), he believes it’s true. He clearly has very narrow biased vision and thankfully the wider population is less accepting of violence and aggression, as well as less willing to justify it and protect those who engage in it.

So impressed by those SAS soldiers who spoke out to expose the nastiness within, as they have done much to improve the culture by rooting out the negative influences.

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Elaine Staples says: 12 June 2023 at 11:59 pm

None of us know how we would react in the stress space of a violent, unpredictable hostile environment. How we would react when a group we are training turns and shoots the trainers (the Poate case).
Nor how each of us, when trained in a hyper masculine environment, is never sure an “innocent” is innocent.
Whilst BRS., “on the basis of probability,” may be guilty, he also has demonstrated he was once worthy of commendation. His AWM display should not be removed, rather the other side of his story should also be displayed, so demonstrating the appalling circumstances in which war places participants.

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