Over the last two weeks I have read through the Brereton report, Justice Besanko’s judgement in Roberts-Smith v Fairfax Media, the judgement of the Federal Court in Roberts-Smith’s appeal, and both Crossing the Line: The inside story of murder, lies and a fallen hero (2023) by Nick McKenzie, and Flawed Hero: Truth, Lies and War Crimes (2023) by Chris Masters.

This was no trivial undertaking, amounting to well over 2,000 pages of careful reading. I did this because I continue to see on social media comments on this case which are, to say the least, ill-informed.

For example, the claim that Andrew Hastie was BRS’s commanding officer and therefore should be charged too, if anything wrong was done. Hastie was never at any time BRS’s commanding officer. Or the claim that armchair critics should not judge decisions made in the heat of battle. That is true as a general principle, but has no application in this case. None of the charges relate to actions taken in battle. Or the claim that Australian Federal Police and Federal Courts have no jurisdiction to hear military matters. That is simply false.

This has become a matter of national interest, in part at least because it reflects on our national character.

The claims made by many of BRS’s fellows in the SASR, are, if true, a shocking indictment of a very few who betrayed their companions, their regiment, the people of Australia who trusted them to act in their name, and the people of Afghanistan, whom they were there to protect from Taliban terrorists and to assist in the establishment of a long-term viable democratic government.

We have an obligation to investigate and deal honestly with credible accusations of war crimes involving Australian service men and women. This is not just a matter of law, including international law relating to conduct in war to which we are parties, but a matter of integrity, of simple right and wrong.

I will give a quick overview of each of the documents listed above.

The Brereton Report, about 460 pages, gives useful background. What constitutes a war crime. What provisions exist in Australian and International law to investigate and prosecute allegations of such crimes. How Australia has acted in the past in relation to claims of war crimes committed by Australian forces. But matters concerning the specifics of issues of current concern have been heavily redacted, removing names, dates, and locations. This makes it difficult, though not impossible in a few instances, to identify people or incidents referred to. This includes one incident Brereton describes as the most shameful in the history of Australia’s armed forces.

Justice Besanko’s judgement runs to over 700 pages, and is gripping but sometimes difficult reading. This is the judgement in the case claiming defamation Ben Roberts-Smith brought against Fairfax Media, and against Nick Mckenzie and Chris Masters.

I have read several judgements in civil and criminal cases. This is the most detailed and thoroughly argued I have so far encountered. It is an extremely careful and fair-minded consideration of multiple strands of evidence – Sametime Chat records, satellite and GPS evidence, Operational Summaries, photographs, flight and military personnel records, along with evidence given by dozens of witnesses. It is, in the end, compelling.

The judgement of the Full Federal Court in the Appeal is shorter, just over 200 pages. It is a response to issues raised by the applicant in which he suggests Justice Besanko failed to consider evidence, or failed to take exculpatory evidence appropriately into account. The applicant’s claims are considered in detail, and where necessary, witness testimony and other evidence reviewed. The applicant’s submissions were rejected, with explanations given of the Court’s reasoning in each instance. This document provides some useful clarification of the timeline of some key incidents.

The books by Nick Mckenzie and Chris Masters are both well-written and continuously engaging. Nick Mckenzie’s book is more personal. At times his descriptions of the impact on Afghan families of mistreatment by Australian soldiers, including the murder of family members, are deeply moving. So are his descriptions of the impact of such actions on the mostly decent soldiers who observed them.

Chris Master’s book is a more objective history of how initial rumours were investigated and how investigations interacted, leading to long-lasting military inquiries, media reports, and eventually to the trial, instituted by Roberts-Smith, at which it was found on the balance of probabilities, to Briginshaw standards, that he had tortured, murdered, and incited the murder of non-combatants.

Both books are worth reading.

If you are interested in understanding more, I would suggest starting with the Besanko judgement. That can be read or downloaded here: https://www.documentcloud.org/…/24412121-judgment…/

It may be difficult reading, especially if you have no legal background, or if you do not have a high level of reasoning and English comprehension skills.

Then read one of the two books mentioned above. Both give a good summary of events leading up to the trial.

Having read all that, you will still not be entitled to come to a conclusion about Ben Roberts-Smith’s guilt or innocence. I do not regard myself as being entitled to do so.

The standard required for conviction of a criminal offence is much higher than in a civil matter. It is sometimes described as “beyond reasonable doubt.” What this means is that if there is any reasonable explanation of all the evidence, taken together, which is compatible with defendant’s being innocent, then a verdict of Not Guilty must be returned.

The question then is: “Are there any instances amongst the matters with which BRS is charged, for which no other reasonable explanation of the evidence can be found except that he acted as charged.” And that is for a jury to decide.