D-Day looms in Ben Roberts-Smith appeal

Ben Roberts-Smith will learn on Friday whether he has been successful in his bid to overturn his multimillion-dollar defamation loss.

The former Special Air Service corporal has claimed Federal Court Justice Anthony Besanko fell into legal error in a damning judgment that found he was complicit in the murder of four unarmed prisoners while deployed in Afghanistan between 2009 and 2012.

Ben Roberts-Smith attends the Federal Court this month.Credit: Sam Mooy

The Victoria Cross recipient has always maintained his innocence and lodged an appeal.

The appeal hearing took place over 10 days in February last year and the parties had been awaiting the decision for more than a year.

The Full Court of the Federal Court will deliver its decision on Friday morning.

Top silk Bret Walker, SC, acting for Roberts-Smith, told the appeal court that “the heart of our case” was that “weight is to be given to the presumption of innocence”.

Walker said the evidence marshalled by The Age and The Sydney Morning Herald in defence of the lawsuit fell short of the “exactness of proof” that was expected.

But Nicholas Owens, SC, who was acting for the newspapers and is now a Federal Court judge, told the appeal court that the case was “not like a detective novel” where there could be multiple explanations for the killings.

He said that, in general, “we know who killed” the four Afghan men in question and “we know how they were killed” – by gunshot.

“The only dispute is in effect the immediate circumstances,” Owens said.

Owens said those circumstances would point to whether the killings involved the lawful engagement of enemy combatants or unlawful killings of unarmed prisoners.

Journalist Nick McKenzie arrives at the Federal Court in Sydney.Credit: Sam Mooy

In a surprise development in March this year, a “secret recording” emerged of The Age and the Herald’s investigative journalist Nick McKenzie speaking to a witness in the defamation case, dubbed Person 17, before she gave evidence in the trial in 2022. McKenzie was an author of the articles at the centre of the case.

That recording prompted Roberts-Smith to apply to reopen his appeal before the court’s decision was delivered to allow the recording to be admitted into evidence.

The court will also deliver its decision on Friday about the application to reopen the appeal.

Lawyers for Roberts-Smith have said there was a “real possibility” the outcome of the trial would have been different if McKenzie had not engaged in this conduct. Roberts-Smith is seeking an order entering judgment in his favour or a retrial.

But the media outlets’ barrister, John Sheahan, KC, said in closing submissions this month that there was “a full and fair trial” of the issues in this case.

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