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Court missed ‘sensational’ detail in Victorian Cross meeting, Roberts-Smith argues

Ben Roberts-Smith’s lawyer said a 2013 sergeant’s meeting about removing the former soldier’s Victorian Cross should have been further considered because of a discredited witness’s evidence.

user iconNaomi Neilson 08 February 2024 Big Law
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The original defamation trial was told four sergeants met with the witness, known only as Person 100, to inform him Mr Roberts-Smith did not deserve his Victorian Cross due to bullying allegations and a claim the soldier had taken credit for other people’s war actions.

Person 100, who was called by Mr Roberts-Smith to give evidence, told the Federal Court that during this meeting, “no complaints were made about war crimes”, either at the Whiskey 108 compound or involving an Afghanistan man who was kicked off a cliff.

Justice Anthony Besanko had rejected Person 100’s evidence and suggested it was either a case of memory failure, “or he was consciously covering up his own failure to act at the time because he did not want to create a scandal within the unit, or engender the animosity of the applicant’s powerful friends and associates”.


Justice Besanko ultimately found in favour of The Sydney Morning Herald, The Age and The Canberra Times and concluded Mr Roberts-Smith either murdered Afghanistan men himself or directed other soldiers to carry out the killing.

Bret Walker, counsel for Mr Roberts-Smith, told the full court bench it was “another instance of incomplete consideration” of the evidence.

“What matters is that Person 100 positively said there was no mention of war crimes,” Mr Walker said on Wednesday (7 February) morning, adding it was “striking, sensational and startling” for Person 100 to admit to the bullying claims but not to the war crimes if it were true.

“That evidence had to be dealt with, it cannot just be put to one side.

“You have to take into account, obviously, the different implications and likelihoods of particular possibilities where those possibilities are canvassed by judicial reasoning to explain why a witness gave evidence to a certain effect,” Mr Walker said.

Mr Walker then questioned Justice Besanko’s suggestion Person 100 had been trying to cover up his own failures.

“That in itself is very bad misconduct about which there is not a shred of evidence to support it,” Mr Walker told the court.

Mr Walker added the same of Justice Besanko’s comment that Person 100 was avoiding Mr Roberts-Smith’s “powerful” friends.

“There is not a shred of evidence to support that rather serious attack on the robustness of his character,” he said.

“My point is this simply doesn’t provide an explanation as to how the imperfect memory – and everyone’s memory would have to be imperfect – is such that this man’s position is simply left to be speculated as to whether it’s been a so-called genuine memory failure …or something far more sinister.”

The hearing will continue on Thursday (8 February) in closed court.

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