Ben Roberts-Smith to appeal war crimes finding

Kerry Stokes is understood to be funding Ben Roberts-Smith’s appeal against a court ruling that he committed war crimes.

Ben Roberts-Smith in 2010.

Billionaire media mogul Kerry Stokes is understood to be funding an appeal by Ben Roberts-Smith against a defamation court ruling that he committed war crimes in Afghanistan, in a move likely to cost at least $1m on top of the more-than $30m already spent by both sides on the case.

The Seven Network boss is believed to remain convinced of Mr Roberts-Smith’s innocence, despite a finding by Federal Court justice Anthony Besanko last month that the Victoria Cross recipient had taken part in the murder of unarmed detainees.

Justice Besanko found it was substantially true that Mr Roberts-Smith had killed civilians, including a farmer kicked off a cliff in the village of Darwan and a one-legged man dragged from a tunnel at the compound known as Whiskey 108.

Mr Roberts-Smith’s lawyers filed the appeal in the Federal Court on Tuesday afternoon.

The former SAS soldier is reported to have hired top silk Bret Walker SC to oversee the appeal.

Mr Roberts-Smith will largely argue that Justice Besanko made errors of fact in finding that the veteran was involved in killings, rather than errors in law. That will make it harder for him to succeed, as appeal courts are often loath to overrule trial judges, who have had the opportunity to hear evidence first-hand and observe witnesses, on questions of fact.

One ground of appeal is that Justice Besanko did not adequately deal with the “improbability” that there was a widespread conspiracy among SAS soldiers at Whisky 108 to conceal the executions alleged by the Nine newspapers, and that he had failed to explain why so many “did not report them or do anything about them.”

Ben Roberts-Smith leaves the Supreme Court in Sydney in 2022. Picture: NCA NewsWire / Jeremy Piper

Mr Roberts-Smith says Justice Besanko erred by accepted the evidence of one soldier (Person 41), the only SAS member claiming to have personally witnessed an execution when multiple soldiers were said to have been present when two Afghan males emerged from a tunnel.

“The primary Judge added to and cherry picked the evidence of a witness whose evidence he

otherwise found to be reliable without adequately explaining the basis for doing so,” the appeal document claims.

“The primary Judge’s reference to a ‘plausible account’ is speculative and inconsistent with making a finding of fact on the balance of probabilities.”

Justice Besanko also “failed to give adequate reasons explaining why he accepted the evidence of certain witnesses regarding uncorroborated conversations that occurred in 2009 in circumstances where human experience tells against the possibility of remembering such matters.”

The judge also gave too much weight to the evidence of Afghan witnesses, despite discrepancies in their evidence, Mr Roberts-Smith argues.

Responding to the appeal, Nine managing director of publishing James Chessell said: “We believe the Federal Court’s judgment is comprehensive and categorical.

“The appeal will be opposed. We will always stand up for journalism that is in the public interest.”

Barrister Bret Walker, SC. Picture: NCA NewsWire / Christian Gilles

The appeal comes after Justice Besanko ruled last week that Mr Stokes’s private company, Australian Capital Equity, and the Seven Network must produce correspondence between the companies and their lawyers, as well as records of attendance by the lawyers at the trial.

Mr Stokes is fighting an application by the newspapers for ACE and his majority-owned Seven Network to pay a share of the costs in the failed defamation action.

Nine had its biggest win over the centrepiece allegation that Mr Roberts-Smith kicked an unarmed Afghan detainee named Ali Jan off a cliff and then killed him. The report claimed Mr Roberts-Smith kicked the handcuffed farmer off a cliff in Darwan in September 2012, and then – with another SAS soldier known as Person 11 – dragged him aside and shot him dead.

An Australian soldier known as Person 4, serving as second in command to Mr Roberts-Smith, told the court the VC recipient took a few steps forward and kicked the man in the chest, sending him sailing over the edge.

Ali Jan was “catapulted backwards and fell down the slope”, where he landed in a dry creek bed, crashing into a rock so forcefully it sent teeth exploding from his mouth.

Person 4 testified that, as he walked away, he heard shots ring out and turned to see Person 11 with his rifle in the firing position while Mr Roberts-Smith stood by watching the execution.

Justice Besanko also found that Mr Roberts-Smith murdered an Afghan prisoner by shooting him in the back with a machine gun and ordered another trooper to shoot a second Afghan in the head.