Many of the witnesses were soldiers or ex-soldiers, but there were also three Afghan villagers who gave evidence via video link from Kabul, amid the Taliban advance in August 2021. Roberts-Smith called 15 witnesses to refute them. To meet the substantial truth test, the media called 26 first-hand witnesses to give evidence and face cross-examination. The 15 imputations pleaded were that the reporting suggested Roberts-Smith authorised the executions of unarmed Afghani civilians, bullied a colleague and committed an act of domestic violence, among others. Proving truth is a defence under defamation law. Then the onus was on the newspapers to prove the truth of the imputations that an ordinary reasonable reader might draw from the reports. To bring a defamation claim, Roberts-Smith needed only to prove that his reputation had been damaged. Why did the case go so long and cost so much? The judge said there was not enough reliable evidence that the assault had occurred but that, because Roberts-Smith’s reputation had been so damaged by the other findings that he was a murderer and war criminal, that did not matter. Roberts-Smith rejected the allegation, and a former Army officer at the dinner gave evidence that he saw the woman fall and sustain a “very large haematoma on the left side of her forehead above her eye”. As one of his silks, Arthur Moses, SC, put it: the “sensationalist” publications were based on rumour, hearsay and contradictory accounts from jealous and obsessed former colleagues, including politician and former SAS officer Andrew Hastie. Roberts-Smith’s case was that all the soldiers and former soldiers who gave evidence against him were motivated by “enormous jealousy” because of his medals, or were so traumatised by war as to be confused. The judge found this allegation was not established. Another soldier denied this, saying during the trial the prisoner had instead been released unharmed. A former SAS soldier gave evidence that Roberts-Smith had told him that he had shot a “baby-faced” prisoner in the head. Incident 6: The newspapers allege Roberts-Smith shot a young Afghan prisoner in 2012 in a place called Fasil, and boasted to a fellow soldier that it was “the most beautiful thing I’ve ever seen”. This allegation hit an evidentiary roadblock and was not further explored after the soldier who allegedly pulled the trigger objected to giving evidence on the grounds of self-incrimination. Incident 5: The newspapers alleged that Roberts-Smith directed a soldier to kill an Afghan prisoner in 2012 in another blooding incident in a place called Syahchow. The judge found the newspapers had proven both these murders took place. Roberts-Smith described this during the trial as gallows humour. Nobody disputes that the man Roberts-Smith killed had a prosthetic leg, nor that the leg was souvenired by another soldier and used as a drinking vessel called “Das Boot” at the SAS base. Roberts-Smith and his witnesses say no one was found in the tunnel, but instead that two insurgents, not prisoners, were killed in action outside the Whiskey 108 compound, one of them by Roberts-Smith himself. They allege the men were made prisoners and then Roberts-Smith killed one of them himself and directed a “rookie” soldier to kill the second as a form of “blooding”, or initiation. Murders 2 and 3: The articles say that, on a mission three years earlier on Easter Sunday, 2009, two Afghan men were discovered in a tunnel in a compound dubbed Whiskey 108. The judge ruled the newspaper’s report to be true. The man in question was a suspected Taliban “spotter” reporting on the movement of coalition forces, he said, and he and another soldier had lawfully fired shots at the man in a cornfield. Roberts-Smith told the court there was “no cliff” and “no kick”. There, according to one of the two soldiers, the man was stood up and then shot dead. Murder 1: The articles reported that Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in the village of Darwan on September 11, 2012, before he ordered two other soldiers to drag the man under a tree.
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