Australian soldier sues media over Afghan war crimes allegations

Sydney Morning Herald executive editor James Chessell and editor Lisa Davies arrive at the Federal Court in Sydney on Monday 7 June 2021

Sydney Morning Herald executive editor James Chessell and editor Lisa Davies arrive at the Federal Court in Sydney on Monday 7 June 2021. AAP

Ben Roberts-Smith's defamation lawsuit has been described as a case about "courage and devotion to duty" by the decorated war hero on the field of battle in Afghanistan, a court has heard.

His accusers have also assembled at the Federal Court as they try to prove on the balance of probabilities that Mr Roberts-Smith was involved in six murders during Australia's longest war.

Ben Roberts-Smith will spend the next two months in room 18D at the Law Courts Building in the central business district defending himself against claims he is a war criminal.

Mr McClintock told the court Dame Quentin Bryce would not appear as a witness for Mr Roberts-Smith for personal reasons, but said the former governor-general had never withdrawn her support for Mr Roberts-Smith.

He told the court Australia is a country which prides itself on its military prowess, but behind that was the fact "war is violent".

Len Roberts-Smith also served in the Australian Defence Force, as well as rising to the position of Justice of the Supreme Court of Western Australia.

"The simple fact is that some who've reported on matters concerning my client have forgotten that fact, the violence of war, in the rush to tear him down", he said.

Sydney Morning Herald executive editor James Chessell and editor Lisa Davies arrive at the Federal Court in Sydney on Monday, 7 June, 2021.

He said the evidence would also show that a man with a prosthetic leg killed by Mr Roberts-Smith in an SAS attack on an "insurgent compound" known as Whiskey 108, in Uruzgan province, was a member of anti-coalition militia.

Current and former members of Australia's special forces are scheduled to give evidence anonymously.

"It's something that would be said by an ostentatious psychopath".

Mr McClintock described as "ridiculous" claims Mr Roberts-Smith said of the alleged incident "it was the most lovely thing I've ever seen".

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"The allegation is ludicrous that my client killed an unarmed man outside, in full view, it did not happen", Mr McClintock said.

In his opening address, Mr McClintock described Mr Roberts-Smith, 42, as a courageous, highly organised and disciplined leader who risked his life in battle in Afghanistan in line with the SAS motto of "Who Dares Wins".

Bruce McClintock, SC, opened this morning in the Federal Court defamation case against the owner of Nine newspapers, Nine Entertainment Company.

The articles included war-crimes allegations such as Roberts-Smith purportedly kicking a handcuffed Afghan prisoner off a cliff and then ordering his summary execution while he lay in a gully with his teeth knocked out.

Nine withdrew the allegation it was unlawful just one month before the trial without an apology, Mr McClintock said.

He asked for the highest amount of aggravated damages ever awarded in Australia.

Mr McClintock said that it was not rare for disabled Taliban fighters to be present on the battlefield.

He told the court the woman, who can not be named, was so drunk she'd fallen down the stairs.

Legal sources have estimated Mr Roberts-Smith could reap damages of between $2-3million if his action is successful.

Ben Roberts-Smith and his former wife Emma Roberts.

"They agreed it would not be appropriate for him to move forward", Mr McClintock said of the abandoned partnership role.

"There really can be nothing more serious than that", the barrister said.

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Roberts-Smith was awarded the Victoria Cross and the Medal for Gallantry for his service in Afghanistan, among Australia's top military honours.

He was a soldier who "deservedly had a high reputation of courage, skill and decency".

Mr McClintock has suggested her appearance is about airing the family's "dirty laundry" and warned he will have to call Ms Roberts a "liar".

Mr McClintock said he was a "fighting age male" and a "spotter" for the enemy in the Chora Pass. "Person 10 turned out to be a poor soldier".

Mr McClintock said Person 1 woke up in the middle of the night, while in enemy territory, having a night terror.

Then Mr Roberts-Smith's team will call evidence from his other witnesses, understood to include other SAS soldiers.

Another soldier, Person 10, also claimed he was bullied by Mr Roberts-Smith after one SAS patrol fired on the other by mistake.

Mr Roberts-Smith has taken leave as boss of the Seven Network's Queensland operations for the duration of the hearing.

Mr Roberts-Smith, his lawyers say, saw Person 10 had been shooting toward a woman and child.

Nine Entertainment Co, the media giant which now owns the old Fairfax outlets, is defending their journalists' claims on the basis the allegations are true.

The court was told Mr Roberts-Smith will likely take the stand on Wednesday.

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