News companies defending a defamation appeal launched by Ben Roberts-Smith over reports he engaged in war crimes in Afghanistan have told a court the ex-SAS corporal's case is "fundamentally flawed".
The appeal by Roberts-Smith, 45, seeks to overturn his June defamation loss against Nine newspapers and The Canberra Times over 2018 reports on war crimes during the Victoria Cross-recipient's Afghanistan deployments.
The 2600-paragraph judgment, handed down by Justice Anthony Besanko, found Mr Roberts-Smith engaged in or was complicit in the unlawful killings of four unarmed prisoners.
Mr Roberts-Smith denies his involvement in any war crimes and has not been criminally charged.
Opening the media outlets' Federal Court appeal case late on Friday, Nicholas Owens SC said it was important for the judges to assess the trial evidence in its entirety.
"The fundamental flaw in the arguments advanced by the appellate in this court lies in the failure to make what we say with respect is any serious attempt to place particular pieces of evidence that they have seized upon in the context of the evidence as a whole," Mr Owens said.
Responding to claims advanced by Mr Roberts-Smith's counsel about "particular" problems with some trial evidence, Mr Owens said his clients' response ranged from denying such problems to "accepting completely that there is a valid point to be made".
"Our real point is that's only the beginning of the analysis," Mr Owens said.
Using the definition of "squirter" as an example, he said there was a "whole lot" of evidence about it at trial such as whether the term meant a person leaving a compound, moving away from a target area, or moving around a compound.
"It's not really a binary choice," the barrister said.
Accounts of witnesses, including Afghans, called by the news companies at trial were found to be honest, while there were findings of "high improbability" on the other side's evidence, Mr Owens said.
The case was not like a detective story, he said, arguing instead that the only dispute in relation to several killings was their surrounding circumstances.
At the appeal, Mr Roberts-Smith's barrister Bret Walker SC had attacked evidence that his client was seen ordering the execution of a prisoner moments after a weapons cache was uncovered in the village of Chinartu in October 2012.
Mr Walker has also claimed problems with evidence purporting to show Mr Roberts-Smith kicked handcuffed prisoner Ali Jan off a cliff before ordering his execution.
The appeal continues before Justices Nye Perram, Anna Katzmann and Geoffrey Kennett on Monday.
