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Besanko’s findings that Roberts-Smith committed war crimes while deployed in Afghanistan between 2009 and 2012 were made to the civil standard – on the balance of probabilities – rather than the higher criminal standard of beyond reasonable doubt.
Bret Walker SC is acting for Ben Roberts-Smith in his defamation appeal.Credit: AAP
Presumption of innocence
But his lawyers, led by top appeal advocate Walker, say in a notice of appeal filed in court that Roberts-Smith was entitled to the presumption of innocence and argue Besanko failed to properly take into account matters including the gravity of the allegations when he made his findings.
The so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in making grave findings.
Walker has appeared in a number of high-profile appeals, including for the late cardinal George Pell in his successful High Court challenge to his conviction for historical child sexual abuse offences.
He is also acting for former premier Gladys Berejiklian in her NSW Court of Appeal challenge to a damaging finding made by the Independent Commission Against Corruption. Berejiklian has always maintained her innocence.
Nine’s silk returns
Sydney barrister Nicholas Owens, SC, who led Nine’s team in its successful defence of the lawsuit, returns to court for the appeal. Award-winning investigative journalists Nick McKenzie and Chris Masters authored the stories and were awarded the Walkley Honour for Media Freedom last year in recognition of their reporting.
Nicholas Owens, SC, acted for Nine in its defamation fight with former SAS soldier Ben Roberts-Smith.Credit: Edwina Pickles
In a centrepiece allegation in the case, the newspapers alleged Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in Darwan on September 11, 2012, before procuring a soldier under his command to shoot him. Besanko found the murder allegation was proven. Under the rules of engagement that bound the SAS, killing unarmed prisoners is a war crime.
In a second key allegation, the newspapers said Roberts-Smith was involved in two murders during an earlier mission on Easter Sunday, 2009, after two Afghan men were discovered in a tunnel in a compound dubbed Whiskey 108. They alleged Roberts-Smith killed one of the men himself and directed a “rookie” soldier, Person 4, to kill the second man as a form of “blooding” or initiation.
Besanko found this allegation was proven.
The judge also found a fourth murder allegation, which did not appear in the news reports but was part of their defence, had been proven, relating to directions Roberts-Smith gave via an interpreter for an unarmed Afghan man to be shot by a member of the Afghan Partner Force in 2012.
Chris Masters (left) and Nick McKenzie after Ben Roberts-Smith lost his defamation case.Credit: James Brickwood
Roberts-Smith’s notice of appeal sets out the legal points that will be raised by his team during the 10-day hearing.
His lawyers say none of the murder findings should have been made, and the judge failed to “adequately deal with the improbability that there was a widespread conspiracy to conceal the truth concerning the deaths of [two men] in the official reporting of the mission” at Whiskey 108.
They also say the evidence of three Afghan villagers, given remotely via audiovisual link from Kabul, should not have been accepted in relation to the alleged murder of Ali Jan.
Roberts-Smith has consistently denied wrongdoing and said any killings were lawful and involved insurgents or a suspected Taliban “spotter” reporting on the movement of coalition forces.
War crimes investigation under way
Following Besanko’s decision, war crimes investigators and the Australian Federal Police were granted access to restricted documents on the court file in his defamation case, amid active investigations into allegations that Australian soldiers broke the rules of engagement in Afghanistan.
“He is, it’s now openly acknowledged, the subject of an investigation,” Federal Court Justice Robert Bromwich said last year of Roberts-Smith. “No one knows where that’s going to end up.”
The material sought by investigators included transcripts of parts of the defamation trial held behind closed doors to protect national security information, subject to redactions. Some sensitive outlines of evidence were also requested, along with documents tendered in closed court.
The appeal will be heard in Sydney before Justices Nye Perram, Anna Katzmann and Geoffrey Kennett, and will be streamed on the Federal Court’s YouTube channel from 10.15am (AEDT).
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