Witness to two alleged BRS killings in Afghanistan ‘plausible’: Nine

A key witness who alleges he saw Ben Roberts-Smith involved in the execution of two men at an Afghan compound ought to be believed, Nine’s lawyers have told a court.

A key witness who alleges he saw Ben Roberts-Smith involved in the execution of two men at an Afghan compound ought to be believed, Nine’s lawyers have told a court.

Mr Roberts-Smith has launched an appeal to the Full Court of the Federal Court following his damaging defamation lawsuit loss to Nine Newspapers last year.

Justice Anthony Besanko last year dismissed the suit after Mr Roberts-Smith sued the Sydney Morning Herald, The Age and Canberra Times over reporting of war crime allegations relating to his deployment in Afghanistan.

Justice Besanko found that Mr Roberts-Smith, 45, was involved in the unlawful killings of four prisoners in Afghanistan, including two at a compound known as Whiskey 108.

Ben Roberts-Smith is disputing the findings of his defamation suit loss to Nine Newspaper. Picture: NCA NewsWire / David Swift.

The findings were made to the civil standard, on the balance of probabilities, which is below the criminal standard of beyond a reasonable doubt - and Mr Roberts-Smith has maintained his innocence.

As part of his appeal, Mr Roberts-Smith is disputing findings that he was involved in the unlawful killings of two prisoners at Whiskey 108 on Easter Sunday in 2009.

Justice Besanko found that Mr Roberts-Smith was involved in the unlawful killing of two unarmed insurgents after the men emerged from a tunnel and were placed under confinement.

According to the allegations, Mr Roberts-Smith shot one man in the back and directed another soldier to shoot another prisoner as part of a plan to “blood the rookie”.

Mr Roberts-Smith’s legal team is arguing that Justice Besanko erred in many of his findings relating to Whiskey 108, including that he unlawfully shot one of the Afghan men in the back before stealing his prosthetic leg and using it as a drinking vessel.

Nine’s barrister Nicholas Owens SC arriving at the Federal Court. Picture: NCA NewsWire/Jeremy Piper.

In his judgment, Justice Besanko said he accepted the evidence of another soldier - known as Person 41 - that he had witnessed the execution of the Afghan man by Mr Roberts-Smith.

While Person 41’s reliability was questioned by Mr Roberts-Smith’s barristers at trial, Nine’s barrister Nicholas Owens on Tuesday told the court that Justice Besanko “dealt with (challenges to his reliability) correctly”.

Person 41’s evidence was challenged after he admitted to drinking out of the prosthetic leg, after it was put to him he wouldn’t have been the type of person to engage in such behaviour if he had believed the man had been unlawfully killed.

“Well, I did,” Person 41 conceded in his testimony during the trial.

And Mr Owens said it did not damage his reliability in making such an admission.

Person 41, during his testimony, was also pressed on why he had not reported the alleged unlawful killings at Whiskey 108 to his superior officer at the time.

In his evidence, Person 41 had said “I just wanted to keep quiet about the whole thing”, he “figured it wasn’t my business” and that he was “was toeing the line”.

“It may not be creditable, in one sense, that one would like to think that people would stand up and report improper conduct when they saw it, but as the trial judge found... While it’s not creditable, it’s entirely plausible,” Mr Owens told the court on Tuesday.

Ben Roberts-Smith denies being involved in four unlawful killings. Picture: NCA NewsWire/Dylan Coker.

Mr Roberts-Smith is also contesting findings that he took part in the murder of a handcuffed shepherd, Ali Jan, at Darwan in September 2012.

In their notice of appeal, Mr Roberts-Smith’s lawyers have argued that Justice Besanko erred in finding that he kicked Ali Jan off the cliff and that he agreed with another soldier, person 11, that he should be shot.

Nine Newspapers at trial relied on three Afghan villagers who gave evidence via videolink from their home country.

And as part of their appeal, Mr Roberts-Smith’s lawyers have argued that Justice Besanko placed significant weight on them “when the evidence of those witnesses was not reliable”.

However, Mr Owens on Tuesday told the court that they gave “powerful and consistent” evidence about the events at Darwan.

“They gave evidence about the manoeuvring of the troops, where the troops came from, where the helicopters came from, the timing of the helicopters,” Mr Owens said.

“All of those things that might look like peripheral details marry up precisely with the objective evidence.”

The hearing before Justices Nye Perram, Anna Katzmann and Geoffrey Kennett continues.