‘Misgivings’ about Roberts-Smith not fatal, court told

Ben Roberts-Smith is seeking to overturn findings he was involved in four unlawful killings.

Ben Roberts-Smith is seeking to overturn findings he was involved in four unlawful killings. Photo: AAP

A judge’s concerns about evidence given by Ben Roberts-Smith should not have bolstered claims the ex-SAS corporal unlawfully executed unarmed prisoners, a court has been told.

The disgraced war veteran is seeking to overturn a defamation loss from June, when it was found reports that he engaged in or was complicit in the murders of four prisoners while deployed in Afghanistan were substantially true.

On Tuesday, his barrister Bret Walker SC said the judge’s “misgivings” about Roberts-Smith’s evidence could not have been used to accept media reports that two prisoners had been executed at a compound called Whiskey 108 in April 2009.

The decorated soldier recipient denies his involvement in any war crimes and has not been criminally charged.

Regarding Whiskey 108, he claims two so-called “squirters” – military speak for insurgents fleeing the battlefield – were shot and legitimately killed.

In his June judgment, Federal Court judge Anthony Besanko rejected the ex-soldier’s claims but did not find he had made a deliberate lie.

On Tuesday, Walker said the judge erred when ruling in favour of Nine-owned papers The Age and The Sydney Morning Herald plus The Canberra Times in finding that two prisoners had been executed.

“It was not by independently identified defects in the ‘squirters’ narrative that His Honour rejected it,” Walker said.

“It was by noting logically that it was at odds with the version that he said he preferred.”

Just because one version of events was rejected did not mean an alternative version occurred, Walker said.

It was better to conclude that it was impossible to say exactly what happened that day, he argued.

In June, Justice Besanko found the Victoria Cross recipient ordered one captured insurgent to be executed by a soldier under his command to “blood the rookie”.

Roberts-Smith also machine-gunned another insurgent, he found, and took his prosthetic leg home to Australia for use as a beer-drinking vessel.

The judge found the ex-SAS corporal ordered the unlawful killing of a prisoner in a cornfield after kicking him off a cliff near the village of Darwan in September 2012.

Walker attacked these findings on Tuesday, saying it was unlikely a so-called “throw-down” alleged by the media companies occurred.

Roberts-Smith has been said to have ordered the execution of the Afghan civilian and then carried a radio across a creek bed to his corpse, planting it nearby to make it seem like a legitimate kill.

The war veteran claims the man was a spotter giving intelligence to Taliban insurgents and was lawfully shot.

No one had actually seen Roberts-Smith recipient carry the large radio device over to the body, Walker said.

The evidence of a number of Afghan witnesses called to back up the Darwan allegations was unreliable and incorrect, he argued.

Justice Besanko had erred by making an “arbitrary pick and choose” of the parts of this evidence that he accepted or rejected and did not give an explanation as to why he did so, the barrister said.

The appeal hearing continues.

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