Key Points
- Ben Roberts-Smith is appealing his 2023 defamation loss over media reports implicating him in war crimes.
- Testimony used in reports was in contradiction with official military documents, the veteran's lawyers have argued
- If the appeal is unsuccessful, Roberts-Smith and his backers will have to pay out tens of millions in legal costs.
The suggestion two insurgents killed during a raid involving Ben Roberts-Smith were unarmed prisoners was speculation and in contradiction with an official military document, an appeals court has heard.
The disgraced war veteran sat with his parents in court on Monday as his team of top-tier barristers attempted to overturn
Representing the 45-year-old ex-SAS corporal, Bret Walker SC said news reports claiming that Roberts-Smith was involved in the unlawful killing of two unarmed prisoners at a compound called Whiskey 108 was based on testimony contradicted by an official patrol debrief.
The document mentioned the deaths of — military speak for insurgents trying to flee a battlefield — and did not refer to any prisoners being captured on the day of the April 2009 event.
In June last year, Federal Court Justice Anthony Besanko found that news reports claiming Roberts-Smith was complicit in and responsible for the unlawful murder of four unarmed prisoners in Afghanistan were substantially true.
Walker told the Full Court there was no explanation as to why the judge had preferred witness testimony based on memories of events 13 years ago over documents created closer in time to the event.
Nowhere had Justice Besanko explained how he found the patrol debrief had been "nefariously corrupted" to cover up the murders, Roberts-Smith's barrister told three appeal judges and a packed courtroom.
A judge could not infer a document had been part of a cover-up if it contradicted witness testimony given to a court, he said.
"That would be absurd and unfair and purely speculative."
A second military document, the details of which were confidential, also supported the version of events described in the patrol debrief, the barrister added.
Differences in testimony between those on the ground, including whether only one person or two emerged from the tunnel, were not adequately explained by the judge and were "shrugged aside", the court heard.
"Nothing is supplied so as to distinguish in any way at all between the reliability of different versions by different people all supposedly in the same place," Walker said.
The 10-day appeal challenges further findings from June last year, including that the decorated soldier allegedly kicked a handcuffed prisoner off a cliff and ordered him executed.
He is also challenging the reports that he allegedly machine-gunned a man in the back and took his prosthetic leg back to Australia to use as a beer-drinking vessel.
The report also claimed that Roberts-Smith bullied fellow soldiers to prevent them speaking out about his actions, threatened witnesses and hired private investigators to track them.
The for the former SAS corporal 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 billionaire Kerry Stokes .
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