War veteran Ben Roberts-Smith has accused a judge of “cherry picking” evidence and was mistaken in finding he was involved in four murders of unarmed prisoners in Afghanistan in his appeal following a landmark defamation loss to three newspapers.
The Victoria Cross recipient sued The Sydney Morning Herald, The Age and The Canberra Times over a series of articles published in 2018 which accused him of war crimes.
Federal Court Justice Anthony Besanko dismissed the proceedings in June after finding the six articles proved – to the standard of the balance of probabilities – the most serious imputations.
He also found the newspapers made out the defence of contextual truth for the remainder of the untrue imputations.
Mr Roberts-Smith’s legal team on Tuesday filed a notice of intention to appeal with the Federal Court.
The appeal is aimed at finding error in Justice Besanko’s factual findings and is expected to cost about $1 million, on top of the $25 million already spent in legal fees throughout the case.
In the notice of appeal, Mr Roberts-Smith’s lawyers said he “appeals from the whole of the judgment”.
His representatives argue Justice Besanko “erred in his findings” Mr Roberts-Smith was involved in four murders of unarmed prisoners in Afghanistan between 2009 and 2012.
Justice Besanko also found the murder of Ali Jan at Darwan in September 2012 to be substantially true, where Mr Roberts-Smith allegedly kicked the detained shepherd off a cliff while he was handcuffed.
He found Mr Roberts-Smith directed another soldier named Person 11 to drag the farmer and shoot him as he stood in the cornfield.
Mr Roberts-Smith’s lawyers claim the judge “erred by impermissibly construing the evidence” of Person 41, who witnessed the execution of Ali Jan, and should not have been regarded as a reliable witness.
“The primary judge added to and cherry picked the evidence of a witness whose evidence he otherwise found to be reliable without adequately explaining the basis for doing so,” the appeal states.
They also claim the judge denied procedural fairness as he did not ask for the “rookie soldier”, known as Person 4, to give evidence about what happened at the compound and placed too great a weight on the evidence of Afghan villagers.
“The primary Judge’s determination that Person 4 was not required to give evidence … denied, as a matter of procedural fairness, an opportunity to confront Person 4 (through cross-examination),” the appeal says.
“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.”
It was also found Mr Roberts-Smith was involved in two murders during a mission at a compound named Whiskey 108, where two Afghan males were placed under confinement by Australian soldiers.
One of the men was executed by a rookie soldier at the direction of Mr Roberts-Smith while he himself killed the other man, the judge found.
Mr Roberts-Smith’s lawyers argue Justice Besanko “did not adequately deal with the improbability that there was a widespread conspiracy to conceal the truth concerning the deaths of (the two men) … in the official reporting of the mission”.
Justice Besanko found witnesses brought by Mr Roberts-Smith were “unreliable”, but his lawyers claim he erred in this finding.
The case has since returned to the Federal Court, where it was revealed Mr Roberts-Smith had agreed to pay the costs of the failed case on an indemnity basis from March 17, 2020. The appeal was yet to be filed.
The company and its owner, billionaire media mogul Kerry Stokes, are fighting the application after funding the case in its early days before it was transferred to a loan from Australian Capital Equity, which Mr Stokes also owns.
A two-day hearing for the costs application against Mr Roberts-Smith, Seven and ACE has been set down for September 4.
Mr Roberts-Smith has consistently denied any wrongdoing, but he is currently under active investigation by the Federal Government’s office of the special investigator.