‘Consciousness of guilt’: Nine’s swipe at Ben Roberts-Smith

Nine claims Ben Roberts-Smith revealed his “consciousness of guilt” when he and his SAS mates allegedly “lied” in court.

Nine newspapers have taken their most aggressive swipe closing their court case against Ben Roberts-Smith claiming the elite soldier showed a “consciousness of guilt” when he and four other soldiers allegedly “colluded” to lie about a war crime allegation.

The marathon defamation trial, launched by Mr Roberts-Smith in 2018, is now in its final days in Sydney’s Federal Court.

Mr Roberts-Smith claims Nine newspapers falsely painted him as a war criminal in articles alleging he killed, or ordered the execution, of six unarmed Afghans while deployed with the SAS.

Nine insists the articles are true, and the Victoria Cross recipient is a murderer, while Mr Roberts-Smith denies every claim.

His legal team made an emotional appeal for Justice Anthony Besanko to restore the good name of a war hero, and a human being who has suffered “soul-crushing” false allegations, and resist claims it was a proxy war crime trial or attack on the free press.

Mr Roberts-Smith denies every allegation against him. Picture NCA Newswire/ Gaye Gerard

The newspapers’ barrister, Nicholas Owens SC, struck a different tone in his closing speech with a granular focus on contradictions and legal principles raised in the evidence of the dozens of SAS witnesses.

Then, on Wednesday, he changed gears.

Mr Owens accused Mr Roberts-Smith, and his closest allies, of conspiring to mislead the court with false evidence about one of Nine’s murder allegations.

“Mr Roberts-Smith was either the architect or the knowing beneficiary of this dishonest collusion,” Mr Owens said.

“He was the one who stood to gain from it and, ultimately, he was the one responsible for the decision to call those witnesses to lead that evidence from them.”

Mr Owens told the court Mr Roberts-Smith’s behaviour was a sign the elite soldier knew he was guilty.

“All of that is conduct from which Your Honour can infer a consciousness of guilt,” he said.

The collusion or “the lie”, as Mr Owens alleged, involved Mr Roberts-Smith and four of his witnesses all telling the court that one of Nine’s war crime allegations simply could not have happened because of a shot dog.

Nine alleged Mr Roberts-Smith, in late 2012, was questioning captive Afghans in the village of Chenartu when another SAS soldier kicked a wall and discovered a cache of weapons.

An Australian soldier looks over Chernartu, Afghanistan, the site of an alleged war crime murder as claimed by Nine, but denied by Mr Roberts-Smith.

Mr Roberts-Smith, Nine claims, ordered a commander of the Afghan Partner Force to have one of the captives killed.

The Afghan commander, known as Person 12, ordered one of his men to execute a captive, Nine alleges.

Mr Roberts-Smith totally denies that allegation.

He was one of five soldiers present at Chenartu who told the court, in documents, that Person 12 was not even at Chenartu because he had shot a dog and the bullet ricocheted before injuring an Australian soldier weeks earlier.

The evidence of the five men would have destroyed Nine’s murder allegation but it wasn’t correct, the court has heard.

Photographs and other documents, shown only in closed court, are said to prove it was a different Afghan soldier who had shot the dog and Person 12 was still working with the SAS at the time of the Chenartu raid.

The trial’s closing continues.