“Ben [Roberts-Smith] hasn’t been convicted of anything.
The opinion of a civilian sitting in judgment of a warrior carries no weight.
Our country sent the SAS into battle, the very tip of the spear.
You want to condemn a soldier for doing his job?
Shame on you.”
“Here we have the suggestion that only those who have been in the thick of battle can pass judgment on those alleged to have violated the law and rules of engagement. That’s a claim refuted by history,” writes columnist HUGH SELBY.
My thanks to the reader who sent this to our editor as his response to my article calling for parliamentary action to remove the two valour awards bestowed upon Mr Roberts-Smith.
I am thankful because it is likely that there are many Australians who share the letter writer’s views.
The purpose of this article is to discuss the letter.
The easy part is to acknowledge the truth of two statements:
- That Mr Roberts-Smith hasn’t been convicted (in a criminal court) of anything. We can go further and note that he hasn’t been charged with any criminal offence; and,
- Our country sent the SAS into battle, the very tip of the spear. That’s an apt description because the SAS are a combat elite, carefully chosen, highly trained, battle hardened.
But now we must consider each of the other assertions where my views and that of the letter writer are forever at odds.
‘The opinion of a civilian sitting in judgment of a warrior carries no weight’
I shall assume that by “civilian” is meant each and all of Justice Besanko at the hearing, the three judges of appeal, and then the members of the High Court of Australia.
The appellate courts (with no dissenting judgments) found that the assessment of the evidence by Justice Besanko was free of error. That is, his findings of not one, but multiple murders by Mr Roberts-Smith, were well based in the evidence given at the hearing.
We must remember that Mr Roberts-Smith began litigation against journalists and media publishers, claiming that the allegations against him were baseless.
The defence to his allegations was to assert the truth of them.
They called many witnesses, a number of whom were other members of the ADF, so not civilians.
Mr Roberts-Smith also called other members of the ADF in support of his version of events.
All of these witnesses – for both sides – were examined, cross-examined, and re-examined by experienced advocates.
Justice Besanko was assisted by the submissions from the parties as to what findings flowed from an evaluation of the entirety of the evidence
Neither side spared any expense.
The judge then applied his intellect and experience to reach results that flowed from the evidence.
It would make no difference to his independence and skills whether the evidence was about war crimes, corporate misfeasance, patent infringement, tax avoidance schemes, environmental damage, class actions or whatever.
Nobody would suggest that a senior judge was unable to decide one of these cases because they were not a company director, an inventor, an accountant, an engineer, a person experienced in assessing risk, etcetera.
Yet here we have the suggestion that only those who have been in the thick of battle can pass judgment on those alleged to have violated the law and rules of engagement. That’s a claim refuted by history.
Following World War II there were war crimes trials in Europe and in Asia. There have been later war crimes trials arising from the bloody wars in what was Yugoslavia.
We can live in hope that those orchestrating the carnage in Gaza and the Ukraine might one day also face a War Crimes International Court.
“Civilian” will also cover any jurors who hear any cases brought against any ADF members who are charged with criminal offences arising from what they did or didn’t do while on active service.
It would follow that if criminal charges are brought, and a jury convicts any ADF member, that some will excuse their criminal actions for ever more, claiming that those jurors too have valueless opinions.
Fact finders who pay attention to the evidence, and to those who give that evidence, and properly apply the law and reasoning processes will reach the right result.
There are occasions, few but important, where new evidence becomes available after the hearing and the appellate processes. That new evidence can upset earlier findings.
I am not aware of any claims that there is now new evidence that contradicts evidence given by the witnesses called by the journalists and media companies.
It follows that the weight of the evidence against Mr Roberts Smith is strong. That is the sad, embarrassing reality.
‘You want to condemn a soldier for doing his job?’
I do not condemn any soldier for doing her or his job, providing that the job that they are given to do is agreed by the international community to be a proper task.
Throwing an unarmed civilian over a cliff, shooting unarmed civilians, causing others to shoot unarmed civilians, is not the work of heroes. It is the work of cowards.
I accept unreservedly that in the heat of battle one or many innocents may die. That does not mean that I, or any other combatant, or any civilian near or far, need accept the wilful killing of unarmed civilians for the hell of it.
I also accept that singling out Mr Roberts-Smith for a handful of murders while the world looks on at the Gaza genocide and Ukraine carnage has the smack of double standards.
There is, however, a difference. Mr Roberts-Smith claimed that what he did was okay. His colleagues, his front-line colleagues, did not agree.
Breaker Morant had a better excuse than that of Mr Roberts-Smith. He was court-martialled and executed.
‘Shame on you’
Yes, I have shame, a lot of it. Shame that it took so long to uncover the truth. Shame that the Australian War Memorial still holds this man out as a hero. Shame that he wears medals that should not be seen on his chest. Shame that among the best of our courageous fighting folk we have a protected killer of the innocent.
But I also have pride. Pride in the grit and determination of those who worked to uncover the truth. Pride in the selfless values that many in our ADF strive to inculcate in all those with whom they work.
Former barrister Hugh Selby is a CityNews columnist, principally focused on legal affairs.
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