Twist ahead of D-day in war crimes case

The 44-year-old has been anxiously waiting 309 days for the result in the trial of the century, where Justice Anthony Besanko will decide whether he is a war criminal, or was defamed in multiple articles.

However, NCA NewsWire understands the commonwealth is attempting to intervene by asking the judge to delay publishing the full written reasons in the case until Monday.

This is so they can be looked at for any disclosures of sensitive information.

Justice Besanko is still expected to read a summary of the case, with court officials understanding it will still go ahead.

On the eve of the monumental decision, Mr Roberts-Smith was pictured laying poolside in Bali at a $500-a-night resort.

According to 9News, the Victoria Cross recipient checked into the hotel on Tuesday.

Many expected Mr Roberts-Smith to attend court today, as he did every single day during the 110-day long trial, even when former comrades and his ex-wife gave evidence against him.

He is not legally required to be in court for the decision.

Since the Federal Court trial ended on July 27 last year, Justice Besanko has been scrutinising more than 100 days of evidence to decide whether Australia’s most decorated living soldier committed “the most heinous acts of criminality” while serving with the SAS.

The decision comes after 309 days of waiting for the elite veteran, and his journalist accusers, after 41 witnesses and more than $25 million in legal fees.

Justice Besanko will deliver his judgment in Sydney at 2.15pm Thursday, deciding whether Nine newspapers reported the truth in its articles about Mr Roberts-Smith which described him as a war criminal complicit in five murders, bullying and domestic abuse.

Mr Roberts-Smith’s lawyers are hoping a finding in his favour will clear his name and land the largest defamation payout in history.

The marathon trial redefined Australia’s war in Afghanistan, but also exposed alleged war-crimes by the former soldier and revealed his extramarital affair.

The Victoria Cross recipient launched a defamation lawsuit shortly after Nine accused him of war crime murders in six mid-2018 articles published in The Sydney Morning Herald, The Age and The Canberra Times.

He alleged the newspapers wrongly accused him of war crimes, bullying a fellow soldier and an act of domestic violence against a former lover.

But Nine dug in, defending the articles in the Federal Court by saying they are true.

In their defence, Nine sought to prove on the balance of probabilities Mr Roberts-Smith was involved in the murder of five unarmed prisoners while in Afghanistan between 2009 and 2023.

Justice Besanko will make a finding on whether those meanings were conveyed – and found to be true – and whether Mr Roberts-Smith was identified by the articles.

During closing arguments, Mr Roberts-Smith’s barrister, Arthur Moses SC, reminded the judge that Nine bore the heavy burden of proving his client was a murderer.

The entirety of the evidence, Mr Moses told the court, shows Nine had no basis and no proof to publish grave claims Mr Roberts-Smith killed six unarmed Afghans.

“(Nine) published allegations and stories as fact that condemned Mr Roberts-Smith as being guilty of the most heinous acts of criminality that could be made against a member of the Australian Defence Force, and indeed any citizen,” he said.

He called on the judge to reject Nine’s case “in all forms”.

One question Nine has never answered, according to Mr Roberts-Smith, is what motive did he have to kill five detained Afghans when he had transported hundreds more safely back to Australian bases.

But Nine’s barrister, Nicholas Owens SC, told the judge even “the most brutal, vile member of the Taliban imaginable” cannot be killed and detained.

“To do so is murder,” he said.

He said Mr Roberts-Smith killed detainees simply because they were “enemy combatants”.

“We say that was a powerful motive that operated in relation to all of these incidents … it was a motive to kill Taliban insurgents regardless of the lawfulness of doing so,” Mr Owens told the court.

The trial is the culmination of years of conflict within the SAS and it has a significant overlap with top-secret war crime investigations.

Lawyers representing the Commonwealth government were also present during the trial every day to keep highly classified military information out of the public sphere.

Mr Roberts-Smith was awarded the Victoria Cross, the highest military honour, when he stormed machine guns that had pinned down his men in the battle of Tizak in late 2010.

Over the following years the VC, and Mr Roberts-Smith’s meteoric rise to national hero, divided the SAS into two camps, the court heard.

Multiple soldiers testified that many in the SAS backed Mr Roberts-Smith as among the best in the brotherhood, while others believed the famed Corporal was a thug to his own men, and maybe even something more sinister.

It was 2016, two years before Nine’s articles emerged, that the Inspector General of the Australian Defence Force began probing rumours of war crimes within the SAS.

No one has been charged with war crimes by the OSI but it was clear they, too, were closely watching the defamation trial that traversed the dustiest corners of Afghanistan to the inner fractures of Australia’s most secretive military brotherhood.