Ben Roberts-Smith’s defamation trial was given no evidence that “blooding the rookie” could only mean procuring a murder, the war veteran’s lawyers have argued.
On Tuesday morning, Roberts-Smith’s barrister, Bret Walker SC, raised issue with Justice Anthony Besanko’s finding in June that Roberts-Smith, while a member of the Special Air Service Regiment in 2009, ordered a less experienced soldier to execute an elderly, unarmed Afghan man in order to “blood the rookie”.
Walker said there needed to be a focus on what “blooding the rookie” meant “because there is, with great respect to the soldiers in question, I’m afraid, just as much an application to legitimate killing, which some may say is part and parcel of a soldier’s job”.
“Blooding is not a word that need indicate illegitimacy any more than killing,” Walker told the full bench of the federal court in Sydney on the second day of the appeal against Roberts-Smith’s defamation loss against the Sydney Morning Herald, the Age and the Canberra Times.
“There’s absolutely no evidence that ‘blooding the rookie’ means and could only mean, in the parlance of these people, procuring a murder.”
Walker added that witnesses who were asked about the term during the initial trial “accepted it’s not a phrase about misbehaviour at all”.
Walker continued his argument that Besanko made errors in his reasoning when he found the war veteran to be engaged in or complicit in the murder of four Afghan men.
The Victoria Cross recipient denies his involvement in any war crimes.
Walker also cast doubt on the evidence given by Afghan locals in relation to Roberts-Smith’s actions during a mission to the village of Darwan in 2012, where the court heard the soldier marched a handcuffed Ali Jan – a farmer who was not suspected of being an insurgent – to stand at the precipice of a 10-metre-high cliff before kicking him down into a dry riverbed below.
“We’re pretty sure this is common ground, on any view, there are aspects of the evidence of the Afghans taken as a whole but also taken sequentially … which are incapable of complete acceptance, that is there are too many internal contradictions,” Walker said.
“His honour [Besanko] himself refers to aspects of the Afghans evidence concerning Darwan as … surely, very gently, ‘embellishment’,” Walker said.
The lawyer suggested it would be “bold” of a judge not to consider that “villagers who had been raided more than once may incorporate impressions gained from different raids when asked to reconstruct what happened on one”.
“It is accepted that there are evident, one would say glaring indicators of compromised reliability … the question is what does that say about other parts of their evidence which happened to assume forensic significance?” Walker said.
“There has to be an explanation rather than simply an arbitrary pick and choose as to why the former and the latter have been treated differently,” he said.
In June, 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.
In his decision, 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.
