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‘Incomplete fact-finding’ in Roberts-Smith trial, counsel claims

The Federal Court was told it was unlikely Ben Roberts-Smith carried out the killings without more witnesses as the former soldier continues to appeal his failed, multimillion-dollar defamation case.

user iconNaomi Neilson 07 February 2024 Big Law

Image credit: Federal Court of Australia

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On the second day of the appeal hearing, Bret Walker SC, counsel for Mr Roberts Smith, said Justice Anthony Besanko had been engaged in an “incomplete fact-finding mission” when he found in favour of The Sydney Morning Herald, The Age and Canberra Times.

Mr Walker centred the day’s submissions on an allegation Mr Roberts-Smith kicked an unarmed Afghanistan man off a cliff and directed an unnamed soldier to shoot him.

Justice Besanko accepted evidence of Mr Roberts-Smith or an unnamed soldier planting a Taliban radio, known as an ICOM, on the Afghanistan man’s body to make the murder appear legitimate.


Mr Walker said that even if the ICOM had been placed on the man’s body, this did not mean there was a “cover-up by deception, the deflection of the truth” of what was alleged to be an unlawful killing.

“Given the way the case was marshalled against us, it surely cannot be said this was murder even if the ICOM was there because the man had it previously,” Mr Walker submitted.

Mr Walker added the media relied on an allegation Mr Roberts-Smith carried the ICOM over a creek and to the man’s body but suggested the “significant thing is no one saw that” and reported it.

“We make the point that the judge could not proceed by seeing and hearing the evidence of an eyewitness and forming a favourable opinion of it, thereby and for that reason, discounting the opposite inferences to be gathered from other evidence,” Mr Walker said.

During Monday’s (5 February) hearing, Mr Walker suggested Justice Besanko had leaned into speculation that was “not supported by the 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.

The appeal hearing will continue on Wednesday (7 February).

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