Ben Roberts-Smith’s million-dollar gamble in defamation appeal

• Watch the appeal hearing live here from 10.15am (AEDT)

A high-powered legal team led by prominent Sydney silk Bret Walker will fight to overturn damning findings made against former Special Air Service soldier Ben Roberts-Smith in a million-dollar defamation appeal before a trio of Federal Court judges.

Roberts-Smith’s 10-day appeal against a decision dismissing his defamation case over reports in The Age and The Sydney Morning Herald starts on Monday. His lawyers will argue Federal Court Justice Anthony Besanko fell into legal error by finding the former corporal was complicit in the murder of four unarmed Afghan prisoners.

Ben Roberts-Smith’s lawsuit is being bankrolled by Kerry Stokes (left).Credit: Matthew Absalom-Wong

The Victoria Cross recipient is asking the Full Court of the Federal Court to set aside Besanko’s decision in June last year and to enter judgment in his favour.

He has also asked the court to award damages itself, or to send the matter to a different Federal Court judge to calculate damages.

Stokes bankrolls costly fight

Roberts-Smith, whose lawsuit against the Nine-owned newspapers has been bankrolled via a loan from Seven West Media chairman Kerry Stokes’ private company, Australian Capital Equity (ACE), agreed in October last year to pay almost $1 million as security into court to cover Nine newspapers’ legal costs should he lose the appeal. The $910,000 payment was made in two tranches of $300,000 each and one of $310,000.

After a protracted court fight that threatened to expose communications about the case by Roberts-Smith’s chief supporters at Seven, Stokes agreed in December that ACE would pay the newspapers’ costs of the trial – estimated at more than $16 million – on an indemnity basis. This covers a higher proportion of a costs bill than a standard costs order.

Including Roberts-Smith’s own costs, the total costs of the litigation are estimated at more than $30 million. This excludes the costs of the appeal. Should Roberts-Smith win the appeal, Stokes’ company will no longer be on the hook for the newspapers’ costs.

Besanko’s findings that Roberts-Smith committed war crimes while deployed in Afghanistan between 2009 and 2012 were made to the civil standard – on the balance of probabilities – rather than the higher criminal standard of beyond reasonable doubt.

Bret Walker SC is acting for Ben Roberts-Smith in his defamation appeal.Credit: AAP

Presumption of innocence

But his lawyers, led by top appeal advocate Walker, say in a notice of appeal filed in court that Roberts-Smith was entitled to the presumption of innocence and argue Besanko failed to properly take into account matters including the gravity of the allegations when he made his findings.

The so-called Briginshaw principle applies in civil cases involving serious allegations and requires courts to proceed cautiously in making grave findings.

Walker has appeared in a number of high-profile appeals, including for the late cardinal George Pell in his successful High Court challenge to his conviction for historical child sexual abuse offences.

He is also acting for former premier Gladys Berejiklian in her NSW Court of Appeal challenge to a damaging finding made by the Independent Commission Against Corruption. Berejiklian has always maintained her innocence.

Nine’s silk returns

Sydney barrister Nicholas Owens, SC, who led Nine’s team in its successful defence of the lawsuit, returns to court for the appeal. Award-winning investigative journalists Nick McKenzie and Chris Masters authored the stories and were awarded the Walkley Honour for Media Freedom last year in recognition of their reporting.

Nicholas Owens, SC, acted for Nine in its defamation fight with former SAS soldier Ben Roberts-Smith.Credit: Edwina Pickles

In a centrepiece allegation in the case, the newspapers alleged Roberts-Smith kicked an unarmed and handcuffed Afghan villager named Ali Jan off a small cliff in Darwan on September 11, 2012, before procuring a soldier under his command to shoot him. Besanko found the murder allegation was proven. Under the rules of engagement that bound the SAS, killing unarmed prisoners is a war crime.

In a second key allegation, the newspapers said Roberts-Smith was involved in two murders during an earlier mission on Easter Sunday, 2009, after two Afghan men were discovered in a tunnel in a compound dubbed Whiskey 108. They alleged Roberts-Smith killed one of the men himself and directed a “rookie” soldier, Person 4, to kill the second man as a form of “blooding” or initiation.
Besanko found this allegation was proven.

The judge also found a fourth murder allegation, which did not appear in the news reports but was part of their defence, had been proven, relating to directions Roberts-Smith gave via an interpreter for an unarmed Afghan man to be shot by a member of the Afghan Partner Force in 2012.

Chris Masters (left) and Nick McKenzie after Ben Roberts-Smith lost his defamation case.Credit: James Brickwood

Roberts-Smith’s notice of appeal sets out the legal points that will be raised by his team during the 10-day hearing.

His lawyers say none of the murder findings should have been made, and the judge failed to “adequately deal with the improbability that there was a widespread conspiracy to conceal the truth concerning the deaths of [two men] in the official reporting of the mission” at Whiskey 108.

They also say the evidence of three Afghan villagers, given remotely via audiovisual link from Kabul, should not have been accepted in relation to the alleged murder of Ali Jan.

Roberts-Smith has consistently denied wrongdoing and said any killings were lawful and involved insurgents or a suspected Taliban “spotter” reporting on the movement of coalition forces.

War crimes investigation under way

Following Besanko’s decision, war crimes investigators and the Australian Federal Police were granted access to restricted documents on the court file in his defamation case, amid active investigations into allegations that Australian soldiers broke the rules of engagement in Afghanistan.

“He is, it’s now openly acknowledged, the subject of an investigation,” Federal Court Justice Robert Bromwich said last year of Roberts-Smith. “No one knows where that’s going to end up.”

The material sought by investigators included transcripts of parts of the defamation trial held behind closed doors to protect national security information, subject to redactions. Some sensitive outlines of evidence were also requested, along with documents tendered in closed court.

The appeal will be heard in Sydney before Justices Nye Perram, Anna Katzmann and Geoffrey Kennett, and will be streamed on the Federal Court’s YouTube channel from 10.15am (AEDT).

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