Roberts-Smith lawyers say ‘hypothesis’ proof was planted on useless man

February 7, 2024by Naomi Cramer

Legal professionals for Ben Roberts-Smith argue that any statements about “blooding the rookie” may have referred to a lawful killing in fight and was not proof that an unarmed Afghan was executed, a court has heard.

Mr Roberts-Smith, Australia’s most adorned residing soldier, has appealed to the Full Court of the Federal Court following his damning defamation go well with loss to 9 Newspapers final 12 months.

He sued the Sydney Morning Herald, The Age and Canberra Occasions in 2018 over reporting of warfare crime allegations nevertheless Justice Anthony Besanko in June final 12 months dismissed the case.

Mr Roberts-Smith is dealing with a two-week attraction listening to – earlier than Justices Nye Perram, Anna Katzmann and Geoffrey Kennett – after Justice Besanko discovered that Mr Roberts-Smith, 45, was concerned within the illegal killings of 4 prisoners in Afghanistan.

The Victoria Cross recipient has all the time maintained his innocence and the findings had been made to the civil customary of on the steadiness of possibilities, not the prison customary of past an affordable doubt.

His barrister, Bret Walker SC, has argued that the proof didn’t assist 9’s fact defence.

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He has additionally argued that Justice Besanko didn’t take into accounts the “Briginshaw precept” which dictates that severe allegations needs to be handled cautiously when making grave findings.

Ben Roberts-Smith is appealing against his defamation lawsuit loss. NCA NewsWire/Christian Gilles.
Digital camera IconBen Roberts-Smith is interesting in opposition to his defamation lawsuit loss. NCA NewsWire/Christian Gilles. Credit score: NCA NewsWire

Mr Walker on Tuesday informed the court that it might be tough to return to a conclusion concerning the allegations given the passage of time, the variety of witnesses and since they relate to incidents in “the fog of warfare”

“It’s virtually potential {that a} reality finder can’t be glad a method or one other, or can’t be glad what actually occurred,” Mr Walker mentioned.

“That’s not a distant theoretical chance solely.”

Mr Roberts-Smith is disputing findings regarding allegations that he was concerned within the killings of two prisoners at a compound dubbed “Whiskey 108” on Easter Sunday in 2009.

Digital camera IconBen Roberts-Smith’s parents, Len and Sue Roberts-Smith, arriving on the Federal Court in Sydney on Tuesday. NCA NewsWire / Dylan Coker Credit score: Information Corp Australia

In response to the allegations, Mr Roberts-Smith shot one man within the again and directed one other soldier to shoot one other prisoner.

Of their discover of attraction, Mr Roberts-Smith’s lawyer argue that Justice Besanko adopted a flawed strategy find that one other soldier, individual 5, in uncorroborated conversations, made reference to having “blooded the rookie”.

Mr Walker mentioned the uttering of such a phrase didn’t imply that any killing was illegal.

“There must be a concentrate on what ‘blooding the rookie’ meant,” Mr Walker mentioned.

He famous there may very well be an “harmless” understanding of a “confronting phrase”.

“As a result of there’s, with nice respect to the troopers in query, simply as a lot an utility to a authentic killing which some could say is an element and parcel of a soldier’s job,” Mr Walker mentioned.

“When one’s speaking about blooding a rookie, in different phrases, maybe confrontingly to civilians, that it’s applicable earlier than an engagement {that a} rookie… needs to be blooded. That’s, ought to kill an individual.

“It isn’t saying that that needs to be finished by the use of homicide.”

SAS Corporal Ben Roberts-Smith photographed immediately after the action that won him the Victoria Cross in Afghanistan. SUPPLIED PHOTO.
Digital camera IconBen Roberts-Smith acquired the Victoria Cross. Provided. Credit score: Provided

Justice Besanko additionally discovered allegations Mr Roberts-Smith murdered Ali Jan at Darwan in September 2012 to be considerably true, in circumstances the place Mr Roberts-Smith allegedly kicked the handcuffed shepherd off a cliff.

Of their discover of attraction, Mr Roberts-Smith’s lawyers have argued that Justice Besanko erred find that he kicked Ali Jan off the cliff and that he agreed with one other soldier, individual 11, that he needs to be shot.

In his judgment, Justice Besanko discovered that Mr Roberts-Smith “took some steps again after which moved ahead and kicked Ali Jan off the small cliff”.

“The applicant and (one other soldier) Particular person 11 conferred briefly. Particular person 11 shot Ali Jan who at that time was standing and nonetheless handcuffed,” Justice Besanko mentioned in his judgment.

He additional discovered that Ali Jan’s handcuffs had been eliminated and a radio, generally known as an ICOM, was planted on his physique by individual 11 or Mr Roberts-Smith in what has been described as a “throwdown”.

“The applicant falsely reported that Ali Jan was a (Taliban) spotter who had been engaged within the cornfield,” Justice Besanko discovered.

Mr Walker on Tuesday argued that it was “pure hypothesis” to say both of the 2 males took half in a “throwdown”.

“You’ll be able to’t say (the radio) was in anyone’s equipment, you may’t say it was in anyone’s plan to have it beforehand. You’ll be able to’t say it was discovered elsewhere within the compound. You’ll be able to’t say it was supplied by one the Afghan (individuals beneath management) … You’ll be able to’t say it was discovered in the midst of shifting from compounds to the cornfield,” Mr Walker mentioned.

“After all that’s hypothesis to suppose it got here from wherever else.”

The listening to continues on Wednesday.

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by Naomi Cramer

Auckland Lawyer for FIRST TIME Offenders Seeking to Avoid a Conviction. Family Law Expert in Child Care Custody Disputes. If you are facing Court Naomi will make you feel comfortable every step of the way.  As a consummate professional your goals become hers, with customer service as our top priority. It has always been Naomi’s philosophy to approach whatever you do in life with bold enthusiasm and pure dedication. Complement this with her genuine passion for equal justice and rights for all and you have the formula for success. Naomi is a highly skilled Court lawyer having practised for more than 20 years. She serves the greater Auckland region and can travel to represent clients throughout NZ With extensive experience, an analytical eye for detail, and continuing legal education Naomi’s skill set will maximise your legal rights whilst offering a holistic approach that best fits your individual needs. This is further enhanced with her high level of support and understanding. Naomi will redefine what you expect from your legal professional, facilitating a seamless experience from start to finish.   Her approachable and adaptive demeanor serves her well when working with the diverse cultures that make up the Auckland region. Blend her open and honest approach to her transparent process and you can see why she routinely delivers the satisfying results her clients deserve. If you want to maximise your legal rights, we recommend you book an appointment with Naomi today so she can detail the steps for you to achieve your goals. 

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