Court orders war hero Ben Roberts-Smith to hand over documents to media

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Highly decorated former soldier Ben Roberts-Smith has been ordered to hand over the preliminary findings made by a war-crimes inquiry into his conduct in Afghanistan to lawyers acting for the media companies he is suing for defamation.

The Federal Court ruling on Wednesday ordered Mr Roberts-Smith to provide the documents he had argued should remain secret. The documents are significant because they confirm the Afghan-war veteran has been a focus of the long-running Inspector-General of the Australian Defence Force inquiry into war crimes.

Then Corporal Ben Roberts-Smith in 2013.Credit:Getty

That inquiry's damning findings are likely to be released next week by Defence Force Chief Angus Campbell, but Defence sources who cannot be identified because they are not authorised to speak publicly anticipate that no individual soldier will be named to preserve future criminal prosecutions.

However, on Wednesday, the court heard that Mr Roberts-Smith had been issued preliminary findings about his conduct made by Justice Paul Brereton after four years of investigations and hundreds of interviews with SAS insiders.

The former soldier was ordered to hand these findings, which are believed to include hundreds of pages of analysis and evidence, to The Age and The Sydney Morning Herald, which are being sued by Mr Roberts-Smith over reports he allegedly committed murder on deployments to Afghanistan and that he punched a woman in the face in Canberra.

The documents could include a notice from the inquiry that Mr Roberts-Smith is a "potentially affected person". A "PAP notice" is issued to people who are the subject of an adverse finding or recommendation, and it is designed to give recipients a final chance to respond to allegations against them.

One of the daughters of deceased Afghan villager Ali Jan.

The Age and The Sydney Morning Herald have alleged that Mr Roberts-Smith was involved in multiple unlawful killings as an Australian soldier in Afghanistan, including that of Ali Jan, a farmer who in 2012 in Darwan was kicked off a cliff while handcuffed and then shot dead. Mr Roberts-Smith is also alleged to have ordered soldiers in his command to shoot dead detained Afghan men.

The Australian Federal Police is investigating Mr Jan’s death and, the Federal Court has heard, considers Mr Roberts-Smith a suspect. The AFP has interviewed the former soldier and has obtained eyewitness accounts implicating him in war crimes. No charges have been laid.

The Age and The Sydney Morning Herald have also reported an allegation Mr Roberts-Smith punched a woman when the pair left a function at Parliament House in 2018. The woman alleges she and Mr Roberts-Smith were having an affair at the time.

He denies the allegations and says the reports are defamatory because they portray him as a criminal. The news outlets are defending the claim on a truth defence. The defamation trial is to start next year.

The developments in the Federal Court on Wednesday come more than two years after Mr Roberts-Smith issued defamation proceedings. In 2018, he also stated publicly that he had not been contacted by the Brereton inquiry, which has been running since 2016, or an Australian Federal Police war crimes taskforce and that the allegations about his conduct were mere rumours.

Mr Roberts-Smith's lawyers last month launched a last-ditch attempt to keep the crucial inquiry documents hidden from lawyers for the news outlets, but Justice Craig Colvin ruled in the Federal Court on Wednesday that the files should be released to the media.

However, not all the documents sought will be released so as not to jeopardise potential criminal proceedings against Mr Roberts-Smith and other soldiers.

Justice Colvin ordered redactions to documents containing information that Mr Roberts-Smith and other soldiers gave to the Inspector-General's inquiry. The judge found there was a "sufficient risk" the soldiers facing potential prosecution could apply for a permanent stay in future criminal proceedings if their evidence to the inquiry was disclosed.

The Inspector-General has finished its investigation into allegations of misconduct by Australian soldiers in Afghanistan from 2005 to 2016 and has delivered it to General Campbell, who has said he will publicly discuss the key findings.

If you are a current or former ADF member, or a relative, and need counselling or support, contact the Defence All-Hours Support Line on 1800 628 036 or Open Arms on 1800 011 046.

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