Ben Roberts-Smith Appeals Defamation Loss over Alleged Afghan War Crimes

Former Secret Air Service soldier, Ben Roberts-Smith, has filed an appeal against his defamation loss in a federal court case against the Sydney Morning Herald, the Age, and the Canberra Times. The appeal hearings began at Sydney’s federal court, with Roberts-Smith present for the proceedings. His barrister, Bret Walker SC, argued that errors were made in the reasoning of federal court justice Anthony Besanko, who previously found Roberts-Smith complicit in the murder of four Afghan men, including Ali Jan, in 2012. Walker claimed that the evidence presented during the defamation trial was speculative and contradicted eyewitness accounts.

Walker further argued that the weight given to certain pieces of evidence was questionable, and there was a lack of explanation from Justice Besanko regarding the consideration of witness testimony. He emphasized the gravity of the allegations against his client but pointed out inconsistencies and gaps in the findings. One key discrepancy mentioned was the suggestion that two insurgents killed during a raid at Whiskey 108 were unarmed prisoners, which was contradicted by an official military document.

The appeal also challenges other findings from June, including allegations that Roberts-Smith kicked a handcuffed prisoner off a cliff and ordered their execution, machine-gunned a man in the back, and took his prosthetic leg back to Australia as a drinking vessel. Justice Besanko’s original judgment portrayed Roberts-Smith as a bully who threatened witnesses and used private investigators to track them. If the appeal is unsuccessful, Roberts-Smith and his financiers at the Seven Network, including billionaire Kerry Stokes, will be liable for significant legal costs.

Meanwhile, separate investigations into alleged war crimes committed by special forces in Afghanistan have been ongoing. A report in November 2020 concluded that there was credible evidence of 39 civilians and prisoners being unlawfully killed by Australian troops, with two others subjected to cruelty. Roberts-Smith himself has not been charged in relation to these allegations.