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Roberts-Smith counsel accuses trial judge of ‘pure speculation’

Counsel for Ben Roberts-Smith said it was wrong for the Federal Court to find he murdered Afghanistan citizens because the trial judge relied on “speculation” that was “not supported by evidence”.

user iconNaomi Neilson 06 February 2024 Big Law
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The decorated former soldier is appealing the multimillion-dollar defamation case that found he was involved in unlawful killings of Afghanistan men during his time with the Australian Defence Force.

Appearing before the Federal Court on Monday (5 February), counsel for Ben Roberts-Smith, Bret Walker, said there were parts of Justice Anthony Besanko’s original decision, handed down in June last year, “that are speculative in that they are not supported by evidence”.

“The question is not which side’s witnesses or arguments was preferred, but rather the material marshalled by way of evidence and arguments in support of such serious allegations was sufficiently cogent – and I stress significantly cogent – to justify the making of the final adjudication in favour of the allegations,” Mr Walker said.


Mr Walker also told the bench there was no evidence Justice Besanko gave weight to the presumption of innocence or to “the cogency of the evidence sufficient to discharging it”.

The majority of Mr Walker’s opening on Monday centred on the events said to have occurred at a compound known as Whiskey 108.

The Age, The Sydney Morning Herald, and the Canberra Times alleged two Afghanistan men were pulled from a tunnel and were murdered either by Mr Roberts-Smith or at his direction.

One man was said to have been machine-gunned by the soldier.

The other, who was reported to be elderly at the time, was executed by a soldier on Mr Roberts-Smith’s orders. The court heard this practice was referred to as “blooding” someone.

Mr Walker said the evidence of witnesses was contradicted by an official patrol debrief and there was no evidence to indicate this document had been “nefariously corrupted” to hide the killings.

“Both of those matters, that is the fact of the execution itself and the notion of a prior plan to blood someone … are so striking and terrible that one would obviously expect there to be either a report there and then from responsible members of the ADF,” Mr Walker said.

Mr Walker then questioned the timings of what had occurred and said it “takes more than a minute or two to direct a person to carry out a shooting” in addition to clearing the compound of witnesses.

The original trial heard a suppressor had been taken from one of the soldiers and given to the man who carried out the shooting.

At the time, the media defendants said it would have been a “very strange” detail to be included in the account of the soldier who had the suppressor if he was making the execution up.

Mr Walker disputed this, telling the court that the context of a directed execution was already strange enough.

“Whatever very strange means, it is an unlikely candidate as a badge of plausibility,” Mr Walker said.

“It is not an appropriate way to reason that truth being stranger than fiction, according to the misleading cliché, than a tell-tale reliability that stretches credibility or is inextricable by ordinary reasoning. That is bordering on the perverse.”

The appeal hearing continues.