Plenty of proof for two Roberts-Smith murders: lawyers

A range of witnesses including soldiers and Afghan villagers gave clear accounts Ben Roberts-Smith was involved in war crimes while deployed to fight the Taliban, an appeals court has heard.

The decorated war veteran is appealing a Federal Court judgment that in June dismissed his defamation case over reports about his involvement in the murder of four unarmed prisoners while deployed in Afghanistan in 2009 and 2012.

A barrister representing the newspapers behind the reports said on Tuesday there was evidence backing allegations Mr Roberts-Smith had murdered a prisoner with a prosthetic leg outside a compound called Whiskey 108.

Nicholas Owens leaves court
Nicholas Owens describes the evidence of three men as "strikingly coherent".

Mr Roberts-Smith claims he shot the man legitimately because he was a Taliban insurgent.

But barrister Nicholas Owens SC said three witnesses gave "strikingly coherent accounts" of the 45-year-old ex-soldier manhandling the man before throwing him to the ground and machine-gunning him on Easter Sunday 2009.

"All three of them support that coherent and essential narrative," Mr Owens told the Full Court.

A fourth witness said he saw the body on the ground, recognising him as a prisoner brought out of a tunnel discovered in the Whiskey 108 compound.

The reports were published in 2018 by the Nine-owned Sydney Morning Herald and The Age, as well as The Canberra Times. 

They alleged that, in addition to killing the man with the prosthetic leg, Mr Roberts-Smith ordered a junior member of the SAS to kill another unarmed prisoner found in the Whiskey 108 tunnel to "blood the rookie."

The Victoria Cross recipient does not dispute the killing occurred but claims the man was shot lawfully.

Mr Owens said there was a "powerful inference" the junior soldier had stopped to put a suppressor on his M4 rifle before shooting the man in the head.

"It is inconsistent with a legitimate engagement because it implies a level of premeditation," he said.

Mr Roberts-Smith was also said to have kicked handcuffed prisoner Ali Jan off a cliff before dragging him across a dry creek bed and ordering his execution in a cornfield near the village of Darwan in September 2012.

B arrow points to cliff at Darwan and dots lead to corn field (file)
Ali Jan was allegedly kicked off a cliff (at B arrow point) and shot in a cornfield (end of dots).

Mr Owens said Afghan villagers called to give evidence about this killing should be believed because their version of what happened was consistent with what Australian soldiers had recalled.

Attacks on the reliability of these witnesses had been "completely exploded" by the time of the judgment, the barrister said.

In his decision, Justice Anthony Besanko found Mr Roberts-Smith had lied about a 1.5m embankment he said he climbed before being surprised by the man in the cornfield.

The ex-soldier claims he lawfully killed this man as a "spotter" providing intelligence to the Taliban.

Roberts-Smith leaves court
Mr Roberts-Smith was also found to have ordered a prisoner's execution in the village of Chinartu.

The judge also found Mr Roberts-Smith ordered the execution of a prisoner after a weapons cache was discovered in the village of Chinartu in October 2012.

Mr Owens argued the judge had generally engaged in "thorough, detailed (and) careful" reasoning in his 2600-paragraph judgment.

The barrister urged the appeals court to dismiss arguments by Mr Roberts-Smith's lawyers that Justice Besanko had not adequately explained why he had accepted certain pieces of evidence and rejected others.

“Obviously I can't make such a facile submission as to say look how long this judgment is already, are you really saying it should be longer?" he said.

"One cannot seriously contend that this judgment does not reflect a very careful and thorough analysis of the issues, factual and legal, that were thrown up in a very complicated case."

If Mr Roberts-Smith succeeds on his appeal, the Full Court will need to consider whether to make new findings or to send the case back for a supplementary hearing or a complete retrial.

The trial ran for 110 days over about a year and was estimated to have cost the parties at least $25 million before the appeal.

Mr Roberts-Smith denies any wrongdoing and has not been criminally charged.

The hearing continues on Wednesday.

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