Ben Roberts-Smith has received another judicial roasting over his failed appeal against war criminal findings, as he was ordered to pay a lump sum to Nine Newspapers.
The decorated soldier had appealed his 2023 Federal Court loss after he sued the publisher for defamation over reports claiming he was complicit in the murder of four unarmed civilians in Afghanistan.
Roberts-Smith disputed Justice Anthony Besanko’s findings that the allegations were substantially true, arguing that was not backed up by sufficient evidence for such serious claims.
While losing his appeal, his conduct differed from his protests of innocence at trial, appeal court Justices Nye Perram and Geoffrey Kennett said.
That therefore did not open the former special forces soldier to again paying Nine’s legal costs on an indemnity basis, as ordered after the defamation trial.
The costs of the 110-day trial and the 10-day appeal are estimated to exceed $30 million.
But the appeal judges firmly rejected the former SAS corporal’s claim he did not know allegations of murder at a compound known as Whiskey 108 were true.
One of the allegations taken to be proven on the balance of probabilities was that Roberts-Smith ordered the execution of an elderly prisoner to “blood the rookie” during a raid of that compound with a junior Australian soldier.
The court contrasted Roberts-Smith’s behaviour with that of a doctor with an honest but misguided perception of historical injustice regarding their professional incompetence.
“Ordering another soldier to execute an old man kneeling on the ground is not an ambiguous situation,” they wrote in their judgment on Thursday.
“So too, we do not see how the finding that the appellant executed the man with the prosthetic leg with a burst of machine gun fire after frogmarching him to a place outside the compound is susceptible to any ambiguity which might make it plausible that the appellant did not know that what he was doing was murder.”
When dismissing his appeal in May, the judges noted there were three eyewitnesses to the murder, which they said was a “problem” for Roberts-Smith.
The alleged war criminal has maintained his innocence after the appeal loss and has taken the case to the High Court.
The Victoria Cross recipient has not been charged with criminal wrongdoing.
He will have to pay Nine a lump sum to cover some of their appeal costs, but will not be forced to pay indemnity costs after the judges found there was no impropriety in his appeal.
Indemnity costs are those beyond what the court would normally impose, generally allowing the applicant to recoup a larger proportion of their legal fees.
“The appellant was seeking an ultimate outcome predicated on the falsity of imputations which he must have known were substantially true,” the appeal justices said.
“(But) he did not advance a positive and dishonest case against those imputations in the appeal.”
The parties have been asked to negotiate the legal costs sum over the next fortnight.
If no agreement can be reached, a registrar will determine the lump sum in the coming months after considering both sides’ arguments.
Roberts-Smith’s High Court bid will claim the Full Court of the Federal Court made an error in assuming he had accepted some allegations which were not re-contested during the appeal.