Ben Roberts-Smith is appealing against a federal court decision which found he was complicit in four murders, alleging the judge who comprehensively ruled against him in his defamation action “cherrypicked” evidence in his judgment.
Last month Justice Anthony Besanko dismissed a defamation action by Roberts-Smith against three Australian newspapers he said defamed him in a series of 2018 articles by alleging that he murdered civilians, including kicking a handcuffed man off a cliff, and ordering subordinate soldiers to kill prisoners.
Roberts-Smith, a recipient of the Victoria Cross and Australia’s most decorated living soldier, has consistently denied all wrongdoing and told the court he never broke the laws of war. But the judge found, on the balance of probabilities, that the newspapers in their defence proved he was complicit in four murders during his service in the SAS in Afghanistan.
Roberts-Smith’s wide-ranging appeal, lodged on Tuesday, contests each of finding of murder. His appeal is understood to be funded by his billionaire backer and former boss, Kerry Stokes.
The appeal says Besanko erred in finding that Roberts-Smith had ordered a subordinate soldier under his command to execute an elderly prisoner found hiding in a tunnel at a compound known as Whiskey 108, in the southern Afghan village of Kakarak in 2009.
The appeal argues that a soldier – known to the court as Person 41 – who provided the key testimony to that murder, should not have been regarded as an independent or reliable witness, and that his evidence was uncorroborated. The appeal contends Besanko “cherrypicked” the evidence of Person 41.
Roberts-Smith’s appeal also argues Besanko was wrong to find Roberts-Smith had, himself, murdered a disabled man with a prosthetic leg, also found hiding in the tunnel during the Whiskey 108 mission.
The appeal argues Besanko accepted soldiers’ testimony about the two men found in the tunnel uncritically, and “did not take into account the possibility that the witnesses’ memory had become distorted or polluted over time because of intervening events”.
The most dramatic finding against Roberts-Smith concerned the killing of an Afghan father of six, Ali Jan.
The court was told that during a 2012 mission to the village of Darwan, Roberts-Smith marched a handcuffed Ali Jan, a farmer and not suspected of being an insurgent, to stand at the precipice of a 10-metre-high cliff that fell down to a dry riverbed.
Ali Jan was held by the shoulder by a subordinate Australian soldier, known before the court as Person 11.
“[Roberts-Smith] kicked Ali Jan off the small cliff or steep slope into the dry creek bed below,” Besanko said in his judgment.
Ali Jan was badly injured but alive at the bottom of the cliff. He was dragged to a cornfield by Australian soldiers, where he was shot dead by the same subordinate soldier, on the orders of Roberts-Smith.
“Person 11 shot Ali Jan who at that point was standing and still handcuffed,” the judge found. “Roberts-Smith was party to an agreement with Person 11 to murder Ali Jan.”
The court heard evidence from three men who were in the village of Darwan the day Ali Jan died. Their evidence corroborated the evidence of an SAS soldier – Person 4 – who told the court he had seen Roberts-Smith kick the handcuffed villager of the cliff.
He was also party to dragging the injured man to the nearby cornfield where he was shot by another soldier.
Roberts-Smith’s appeal argues that the judge placed too great a weight on the evidence of the Afghan villagers as corroborative of Person 4’s testimony, when their accounts had “material inconsistency”.
“The primary judge placed significant weight on the evidence of the Afghan witnesses, including particularly relying on their evidence as corroborating the account of Person 4 when the evidence of those witnesses was not reliable to provide any corroboration,” the appeal argues.
The appeal also contends judicial error in a further murder at a village called Chinartu, where the judge found Roberts-Smith ordered a member of an Afghan partner force, the Wakunish, to murder a prisoner. The appeal says the judge “engaged in speculation” over the discovery of a hidden cache of weapons, which, it was put to the court, was the motivation for killing the prisoner.
Roberts-Smith’s appeal will be heard by the full bench of the federal court. It will be months, likely next year, before it is heard. Given the breadth of the appeal, it is expected to run for a number of weeks.
No criminal charges have been laid against Roberts-Smith and he maintains his innocence.
He remains under active investigation by the federal government’s office of the special investigator which was established to investigate allegations of war crimes committed by Australian soldiers in Afghanistan.
