Ben Roberts-Smith is appealing last month’s landmark defamation judgement that found the decorated soldier had committed war crimes. By Karen Middleton.

Ben Roberts-Smith appeals defamation ruling

Ben Roberts-Smith leaving the Federal Court in Sydney last year.
Ben Roberts-Smith leaving the Federal Court in Sydney last year.
Credit: AAP Image / Dan Himbrichts

Disgraced war veteran Ben Roberts-Smith has accused the Federal Court judge who found he murdered defenceless civilians in Afghanistan of using circular logic and overlooking inconsistencies in evidence to make witnesses seem more credible than they were.

In a notice of appeal filed in the Federal Court this week against the landmark defamation ruling made against his client last month, Roberts-Smith’s lawyer, Mark O’Brien, says Justice Anthony Besanko failed to properly apply the law in finding Ben Roberts-Smith engaged in war crimes.

The Victoria Cross and Medal for Gallantry winner argues the judge effectively undermined the presumption of innocence by making findings of criminal conduct during civil proceedings.

Roberts-Smith had sued journalists Nick McKenzie and Chris Masters and their colleague, David Wroe, along with what was then Fairfax Media, now Nine Entertainment, and Federal Capital Press, over a series of news reports published in 2018 alleging he had murdered civilians, including a handcuffed man he was alleged to have kicked off a cliff, and ordered subordinate colleagues to shoot detainees. Roberts-Smith denied their allegations and mounted his case with the financial backing of Seven West Media chairman Kerry Stokes.

After months of evidence, Justice Besanko threw out the case, finding the newspapers had proved his involvement in four murders to be substantially true. He called Roberts-Smith an unreliable witness, finding he had lied to the court, bullied a colleague and threatened and intimidated witnesses.

In an appeal filed on Tuesday, Roberts-Smith contested the findings in relation to each of those killings. His arguments lean heavily on challenging the judge’s assumptions, logic and consistency. Through his lawyers, he accuses the judge of having “cherry-picked” the evidence of one witness, and questions the credibility afforded to some as opposed to others – and the weight the judge chose to place on particular evidence as a result.

The appeal notice accuses the judge of placing “significant weight” on the evidence of Afghan witnesses who said Roberts-Smith had kicked a man, Ali Jan, off a cliff on September 11, 2012, and procured soldiers under his command to execute him. He argues their stories were inconsistent and inadequately corroborated.

He says what they described – seeing soldiers firing shots into the air or down from aircraft – did not align with the way Special Air Service Regiment (SASR) personnel were trained to operate.

“The Afghan witnesses each gave evidence of events that were inherently improbable and/or inconsistent with SASR practice,” the notice says. The account of one witness who said he saw Ali Jan kicked off the cliff is challenged on the basis that his eyesight was poor.

Roberts-Smith’s appeal notice says the judge engaged in speculation and did not consider the possibility that some of what the witnesses described might have been an amalgam of recollections of other special forces raids. The notice suggests Besanko did not sufficiently consider that the Afghan witnesses had two motives to lie, being “their hatred of infidels” and a long period having been financially supported by an agent the journalists and media companies had engaged.

The appeal notice highlights Roberts-Smith’s argument during the trial that if the Ali Jan incident had occurred as the respondents described, enough people outside his patrol would have either seen it or heard about it to challenge the version Roberts-Smith gave at a patrol commanders’ meeting afterwards. None did.

The journalists argued there was a problem with the logic in that there was no evidence anybody else did see what happened, and it could not be assumed that they would speak up if they did.

Challenging the quality of the Afghan witnesses’ evidence in some contexts, here, Roberts-Smith argues, via his lawyer, the judge gave too little weight to what Afghan witnesses said, having accepted it generally elsewhere. He says that, on their evidence, many soldiers would have seen Ali Jan kicked off the cliff, meaning there was even less chance of Roberts-Smith’s version – if it were false – “surviving scrutiny” at the patrol commanders’ meeting.

He challenged the judge’s inference that Roberts-Smith had a tendency to execute people he thought were Taliban, saying this was not put to him in court as being a motive for killing Ali Jan and, by the respondents’ evidence, Ali Jan was not Taliban but a farmer.

He argues the judge also erred in inferring the Victoria Cross recipient had a tendency to use “throwdowns” – weapons planted on a corpse – to conceal unlawful killings.

Roberts-Smith’s lawyer also says the judge was wrong to find the SAS veteran ordered a more junior colleague to kill a man found hiding in a tunnel during a raid on a suspicious compound, known as Whiskey 108, in the village of Kakarak in 2009. The appeal notice says the judge was wrong to find Roberts-Smith himself murdered another man who had a prosthetic leg and was also hiding in the tunnel.

Roberts-Smith’s lawyer challenges what he says is the judge’s view that one witness, Person 41, seemed more credible for the fact he had included what the judge called a “very strange detail” – that the SAS operator accused of actually shooting the first man had asked to borrow a suppressor, or silencer, from him.

“The primary Judge’s reasoning is circular and erroneous,” the appeal notice says.

He says Person 41’s evidence should not have been accepted because it was not corroborated and because, contrary to the judge’s finding that he was independent and had no interest in the outcome, he had supplied the suppressor that was ultimately used.

“Person 41, by his own evidence, aided and abetted the execution,” the appeal notice says.

It suggests Justice Besanko overlooked or failed to consider inconsistencies in the evidence of some witnesses he had decided were otherwise reliable. “The primary Judge erred in relying upon an improbable aspect of Person 41’s evidence to bolster his reliability.”

Roberts-Smith questions the logic of some of the judge’s conclusions as being based too much on supposition. The notice highlights the circumstances of the Whiskey 108 incident and challenges his finding that it was improbable that two insurgents would appear so close to a compound the SAS operators were investigating, as Roberts-Smith had argued, at almost the precise moment Roberts-Smith was leaving it.

“There was no evidence before the Court permitting the Judge to make conclusions about the probable behaviour of members of the Taliban in the moments after their hiding place had been attacked,” the appeal notice says.

It argues Besanko favoured “irrelevant considerations” in finding that several witnesses who gave evidence about those events had no motive to lie or collude. The appeal notice cites Roberts-Smith’s inability, when questioned, to offer the court a possible explanation as to why these witnesses might lie about Afghans coming out of a tunnel, calling that “an unsafe basis on which to reason factually”.

“The Appellant was not in a position to see into their minds,” Roberts-Smith’s lawyer says. “Witnesses may give unreliable evidence for a number of reasons. The primary Judge did not take into account the possibility that the witnesses’ memory had become distorted or polluted over time because of intervening events.”

The appeal notice takes issue with evidence from a witness who said soldiers had spoken about how Roberts-Smith had “blooded the rookie”.

He says the judge relied on “a flawed approach” to conclude that one witness had said he had “blooded the rookie”, and then relied on other findings about what that witness had said before and after the mission to infer he had known that someone would be executed before it occurred, and afterwards that it had.

He also repeated a challenge made during evidence to whether the word “rookie” was an accurate recollection at all, arguing there was doubt the term was even used because the soldier to whom it was purported to refer had been involved in a previous operation and therefore “could not have been a rookie” during the Whiskey 108 mission.

The appeal notice suggests the judge also erred in making “global findings” about the credibility of those who gave evidence in support of Roberts-Smith’s version of events regarding Whiskey 108. It says the judge was wrong to conclude that “because the Appellant’s witnesses were unreliable about some specific matters, that they were unreliable about all matters” in relation to these and other allegations.

Ben Roberts-Smith has asked the court to uphold his appeal and set aside the judgement made against him in the original case, or at least make findings in his favour. He is also seeking costs.

The appeal is expected to be heard by a full bench of the Federal Court. At time of press, McKenzie, Masters and Wroe were yet to file a response.

This article was first published in the print edition of The Saturday Paper on July 15, 2023 as "Fighting on".

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