Roberts-Smith’s lawyers attack ‘demolition job’

Three Federal Court judges have heard 10 days of arguments in Ben Roberts-Smith's appeal.

Three Federal Court judges have heard 10 days of arguments in Ben Roberts-Smith's appeal. Photo: AAP

A complaints letter should be ignored after it was used to support “sour, bitter or savage” commentary by media firms that published allegations Ben Roberts-Smith engaged in war crimes, an appeals court has heard.

The Victoria Cross recipient has launched a wide-ranging challenge to June defamation findings that reports he was involved in the unlawful killing of four unarmed prisoners while deployed in Afghanistan in 2009 and 2012 were substantially true.

On Friday, his barrister Bret Walker SC criticised the use of a complaints letter written by a soldier known as Person Six and signed by another known as Person Seven in 2013 as he gave submissions on the final day of a 10-day hearing.

The letter responded to a commendation for distinguished service offered to Roberts-Smith for his actions in Afghanistan during 2012.

Walker described the letter as a “demolition job”.

He said three news firms had used the document as part of their defence to the defamation proceedings, extracting phrases from the letter and using them in “sour, bitter or savage commentary” against his client.

The ex-SAS corporal has filed defamation proceedings against Nine-owned Sydney Morning Herald and The Age as well as The Canberra Times over their 2018 reports that he engaged in or was complicit in war crimes.

While the letter made numerous complaints about Mr Roberts-Smith, it did not refer at all to a war crime he allegedly committed, the kicking of a handcuffed prisoner off a cliff in the village of Darwan in September 2012.

The 45-year-old allegedly ordered the execution of that prisoner, who was dragged across a creek bed and shot in a cornfield.

“It is bewildering how in light of the motivations and values immanent in the bulk of that document, the writer and the endorser did not regard (the cliff kick) as plainly inconsistent with the ‘finest traditions of the army and the ADF’,” Walker told the court.

The barrister also reinforced submissions made during the appeal, attacking the plausibility of other details alleged by the media firms to back up their claims of war crimes.

The newspapers had engaged in “speculation” to support their claims, including saying that a patrol debrief after a 2009 raid on a compound known as Whiskey 108 had been concocted.

While Roberts-Smith is alleged to have been involved in the killing of two unarmed prisoners during the raid, the patrol debrief did not refer to any prisoners being taken under the control of Australian troops, the court heard.

There was a difficulty in “sheeting home” the sole responsibility for any claimed false information in the report to Mr Roberts-Smith alone given the collaboration that had to occur to create the document, Mr Walker said.

“I’m afraid that does raise the question of how it is the entire leadership team of the troop has, on the hypothesis advanced against us, got that wrong,” he said.

Roberts-Smith allegedly ordered the execution of an elderly prisoner to “blood the rookie” during the Whiskey 108 raid.

He also is said to have dragged a man with a prosthetic leg outside the compound, throwing him to the ground before machine-gunning him.

In October 2012, the ex-SAS corporal allegedly also ordered another prisoner be shot and killed after a weapons cache was discovered in the village of Chinartu.

Roberts-Smith denies any wrongdoing and has not been criminally charged.

The hearing continues.

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