On the first day of his defamation trial, the lawyer of Ben Roberts-Smith defended the actions of his client, painting the media as the actual antagonist.



Through the lens of Ben Roberts-Smith’s lawyer, the allegations raised against his client is pure fiction, scribbled by hands motivated by spite and jealousy. Bruce McClintock SC called the six murder allegations aimed at Roberts-Smith baseless, stating there was “no evidence to support any of these allegations” and said one allegation of an unlawful killing, later withdrawn by the newspapers, was an outrageous allegation to make without evidence and “justifies the largest award of aggravated damages ever in this country”.

“This is a case of courage, devotion to duty, self-sacrifice, and, perhaps most important of all, surpassing skill in soldiering on one hand. On the other hand, it’s a case about dishonesty, corrosive journalism, cowardice and lies … led by bitter people, jealous of courage and success, aided by credulous journalists.”

McClintock also pointed out to the court that “war is violent”, and that soldiers like Roberts-Smith kill for our benefit, borrowing a quote from Winston Churchill, “We sleep soundly in our beds because rough men stand ready in the night to visit violence on those who would do us harm.”

One of the first orders of Inspector-General Paul Brereton, who began his investigation into alleged war crimes in Afghanistan, was for all personnel to turn over any images in their possession.

As The Age explained, Ben Roberts-Smith didn’t do that. As the publication put it, “Instead, the sources say, Roberts-Smith dug a hole in the backyard of his house in the Sunshine Coast hinterland and buried the USB drives inside a pink plastic children’s lunchbox to hide them from both police and military investigations. Once the Victoria Cross recipient had filled in the hole, he placed a rock on top to mark the spot. According to multiple sources familiar with the matter, federal police who are conducting war crimes investigations into the war hero, have since obtained the contents.”

The images brought the nation back to the SAS bar that saw Roberts-Smith cavorting with a prosthetic limb taken from an allegedly slain Afghan man. The other images involve a fancy dress ball, featuring an individual dressed in as a member of the KKK, replete with a burning cross. In the background, Roberts-Smith can be seen pumping his fist.

As The Age noted, “Brereton’s landmark investigation report into alleged war crimes in Afghanistan last year posed the greatest challenge to the Australian military in decades after he found serious allegations of up to 39 murders committed by special forces. Roberts-Smith has repeatedly denied committing war crimes or any other wrongdoing and is suing The Age and Herald for defamation. He has insisted he has cooperated fully with the Brereton Inquiry and the federal police. But further evidence obtained by The Age, the Herald and 60 Minutes shows the former soldier – who is now an executive at Seven West Media’s Queensland operations – intimidated witnesses in an attempt to stop them giving evidence in inquiries.”

Back in April, in a landmark ruling, Federal Court Justice Anthony Besanko will allow four Afghan villagers to remotely give evidence. The matter will swirl around the treatment of Ali Jan, who the Australian allegedly handcuffed and kicked off a cliff in 2012. Published in The Age, The Sydney Morning Herald and The Canberra Times, Roberts-Smith believes the allegations are “completely without any foundation in truth”.

As the ABC reported, “Justice Besanko said two of the witnesses – one claiming to be a nephew and the other a cousin of Ali Jan – will claim that they had been detained and interrogated by Australian soldiers in Darwan. The nephew will also claim that ‘he saw the applicant kick Ali Jan off the small cliff’. They both claim to have heard gunshots.

“The judgment states that the court will also hear from another witness who claims that ‘he saw a big soldier kick Ali Jan off a cliff’.

“‘He claims that a short time later he heard gunshots. He claims that he saw Ali Jan’s dead body with a gunshot(s) wound to the face.'”

Nick McKenzie of The Age reports that the legal representation of Roberts-Smith fought to stop the four from testifying.

In April, Afghanistan’s Ariana News said that “This is the first time Afghans will testify in an Australian case about an alleged war crime. The world will be watching.”




Last year, Roberts-Smith’s lawyer stated that his client was disgusted by the use of the leg as a drinking glass. His lawyer claimed that 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.”

As The Sydney Morning Herald noted his lawyer “also told the Federal Court Mr Roberts-Smith had been the one who had killed the disabled Afghan militant, saying he was a member of the Taliban. That killing is suspected by police to be an execution and is now the subject of an Australian Federal Police war crimes inquiry and a preliminary prosecution brief of evidence.”

The newspaper also noted that “…multiple official sources, who spoke on the condition of anonymity because the investigations are ongoing, have told The Age and Herald Mr Roberts-Smith will face fresh war crimes inquiries in addition to ongoing federal police taskforces already probing him. The sources confirmed that the federal police are investigating Mr Roberts-Smith over multiple eyewitness accounts from his fellow Special Air Service Regiment soldiers who allege he executed the unarmed Afghan militant wearing the leg in an operation in Kakarak, Southern Afghanistan, on Easter Sunday, 2009. That alleged execution is the subject of a preliminary criminal brief recently submitted by the federal police to Commonwealth prosecutors.”

“It is the most disgusting, shocking and horrific image I’ve ever seen,” Hayatullah Fazly, a member of the provincial council in Uruzgan, told the Guardian, speaking on the phone from his office in Tarin Kowt.

“It is more painful when you consider that were here to help us and make us feel safe. It’s shameful.”

Zabiullah Farhang, a spokesman for the Afghan Independent Human Rights Commission, told The Guardian that the photos showed Australian soldiers “had no respect for the life of Afghans here”.





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