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‘Whole picture’ proof of Ben Roberts-Smith’s guilt, lawyer argues

Evidence disgraced soldier Ben Roberts-Smith executed a man and kicked another off a cliff is in the “whole picture”, lawyers for the media defendants told the Federal Court.

user iconNaomi Neilson 13 February 2024 Big Law
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Appearing on behalf of the media defendants, counsel Nicholas Owens told the full court of the Federal Court to consider the “whole picture” in the evidence and reject Mr Roberts-Smith’s appeal.

He said this was particularly important as Justice Anthony Besanko had the advantage of “not just seeing the witnesses but in seeing the evidence unfold” over an extended period of time, whereas the appeal bench has to “get to grips with a confusing mass of material”.

On that evidence, Mr Owens said Justice Besanko was correct to find Mr Roberts-Smith was responsible for the murder of Afghanistan men while he served in the Australian Defence Force.


During his submissions on Monday (12 February), Mr Owens focused on a dispute about the evidence surrounding an Easter raid of a compound known as Whiskey 108.

It was in this raid that Mr Roberts-Smith was found to have shot one man and directed another soldier to kill the other.

Mr Roberts-Smith’s evidence was the two men found in a tunnel were enemy combatants who were armed and lawfully killed.

However, Mr Owens said a serving soldier, known only as Person 18, identified the guns as instead being located in a weapons cache.

Mr Owens said there was “no evidence” the Afghanistan men were armed or carrying military equipment “that would identify them as demonstrating hostile intent, leading to it being lawful to kill them”.

Late last week, Mr Owens said the court should also reject Mr Roberts-Smith’s character attack of five witnesses, despite a concession they were mostly honest and reliable.

“They’re accepted to be reliable about absolutely everything except for the one fact that sinks the case for Mr Roberts-Smith,” he said.

It was accepted part of one soldier’s evidence was found to be “reliable in every other respect” other than one part of his testimony that had been attributed to either unreliable “false memory” or a suggestion he was a “coward” who stepped away from the tunnel.

The hearing continues.