The suggestion two insurgents killed during a raid involving Ben Roberts-Smith were unarmed prisoners was speculation and in contradiction with an official military document, an appeals court has heard.
Roberts-Smith was in court on Monday as his legal team appealed against his defamation loss against the Sydney Morning Herald, the Age and the Canberra Times.
In the first of 10 days of hearings at Sydney’s federal court, the 45-year-old former Secret Air Service soldier’s barrister, Bret Walker SC, argued that the federal court justice Anthony Besanko made errors in his reasoning when he found Roberts-Smith to be complicit in the murder of four Afghan men, including Ali Jan, in 2012.
“The difference between killing that occurs in the course of duty permitted by a civilised system of law and killing which is not so authorised and is therefore not excused by the activities of war … that difference is of course at the heart of the case,” Walker told the court.
Walker told the court that the body of evidence in the defamation trial was at times “speculative” and contradicted eyewitness recollections. He questioned the weight given to some pieces of evidence over others.
“It is common ground … that these are allegations of the utmost seriousness with a gravity of consequence for our client which I don’t need to dwell on,” he said.
He said there was “a yawning gap” between the factsand explanations given by the judge when it came to his consideration of some witnesses’ evidence over others.
Nowhere had Justice Besanko explained how he found the patrol debrief had been “nefariously corrupted” to cover up the murders, Roberts-Smith’s barrister told three appeal judges.
A judge could not infer a document had been part of a cover-up if it contradicted witness testimony given to a court, he said.
“That would be absurd and unfair and purely speculative.”
Walker told the court the findings that Roberts-Smith was involved in the unlawful killing of two unarmed prisoners at a compound called Whiskey 108 was based on testimony contradicted by an official patrol debrief.
In June, judge Anthony Besanko found Roberts-Smith was involved in four unlawful murders, including two at Whiskey 108 involving insurgents who emerged from a secret tunnel located in the compound.
The 10-day appeal challenges further findings from June, including that the decorated soldier kicked a handcuffed prisoner off a cliff and ordered him executed.
He is also challenging a finding that he machine-gunned a man in the back and took his prosthetic leg back to Australia to use as a beer-drinking vessel.
In his decision, Justice Besanko found Roberts-Smith bullied fellow soldiers to prevent them speaking out about his actions, threatened witnesses and hired private investigators to track them.
The 2,600-paragraph judgment was a comprehensive loss for the Victoria Cross recipient in his defamation case over 2018 reports in Nine-owned papers the Age and the Sydney Morning Herald, plus the Canberra Times.
If the legal challenge is unsuccessful, Roberts-Smith and his financiers at the Seven Network – including the billionaire Kerry Stokes – will be on the hook for tens of millions of dollars in legal costs.
Separately, in November 2020, a report into alleged war crimes by special forces in Afghanistan found credible evidence 39 civilians and prisoners were unlawfully killed by Australian troops, while two others were subject to cruelty.
Two years later, more than 40 alleged offences were under investigation.
Roberts-Smith has not been charged.
