Battle to overturn Robert-Smith execution order finding

Nine’s lawyers say that a key witness to allegations Ben Roberts-Smith ordered the execution of an Afghan prisoner ought to be believed.

A military witness who says he saw Ben Robert-Smith order the murder of an Afghan detainee should be believed because discrepancies in his evidence can be explained, Nine’s lawyers have told a court.

Mr Roberts-Smith is facing an appeal hearing before the Full Court of the Federal Court in an effort to overturn his damaging defamation suit loss to Nine Newspapers last year.

Justice Anthony Besanko in June dismissed the lawsuit and in doing so found that Mr Roberts-Smith, 45, was involved in the unlawful killings of four prisoners in Afghanistan.

Those findings are being appealed before Justices Nye Perram, Anna Katzmann and Geoffrey Kennett, with Mr Roberts-Smith’s legal team arguing the Victoria Cross recipient was not complicit in four murders while deployed in Afghanistan, including allegations he ordered the execution of a man at Chinartu in October, 2012.

Ben Roberts-Smith. Picture: NCA NewsWire / Jeremy Piper.

Justice Besanko found that after another soldier, known as person 14, discovered a cache of weapons concealed in a mud wall at a compound, that Mr Roberts-Smith - through an interpreter - ordered a member of the Afghan special forces, the Wakunish, to execute an Afghan detainee who was being questioned.

The court heard that person 14 noticed a discoloured mark on a wall and kicked it in to find a cache of rice bags full of bullets, RPG warheads and rifles.

According to Person 14’s evidence, Mr Roberts-Smith told an interpreter to relay a message to a member of the Wakunish: “Tell him to shoot him or I will.”

Justice Besanko found: “I find that in a compound in Chinartu on 12 October 2012, the applicant, through an interpreter (Person 13) ordered Person 12 to shoot an Afghan male who was under detention.”

Nine barrister Nicholas Owens SC. Picture: NCA NewsWire / Jeremy Piper

However, Mr Roberts-Smith’s legal team has sought to contradict that version of events and attacked the evidence of Person 14.

Person 14 was the only eyewitness relied upon by Nine at trial and Mr Roberts-Smith’s legal team have argued there are inconsistencies in his evidence, in particular in relation to the discovery of the cache.

Mr Roberts-Smith’s barrister Bret Walker SC, during his submissions, argued that the Australian engineers had already discovered one weapon cache at the compound, yet only one was mentioned in ADF reports of the mission.

Ben Roberts-Smith. Picture: NCA NewsWire / Jeremy Piper.

However, Nine’s barrister Nicholas Owens SC on Monday argued that while it was an “unexplained feature” of his evidence, Justice Besanko had weighed it up when making his findings.

“It’s a matter that the trial judge, as is proper, has taken into account… along with all of the evidence, including what could be called the negative force of that point,” Mr Owens said.

“He has nonetheless reached the state of comfortable satisfaction.”

Mr Owens also asserted that there was an explanation why the cache was not taken by the Australian forces when they were extracted from the compound via helicopter.

“We say not so given the imminence of extraction because presumably one of the things engineers would be very careful to do before they take rockets and grenades on helicopters would be to make sure they’re rendered safe,” Mr Owens said.

“The fact you’re so close to extraction, you may not have time to render the cache safe when the helicopters are already on their way in.”

The hearing moved into closed court proceedings on Thursday while Mr Owens made submissions on national security matters.