Roberts-Smith’s barrister cautions court against ‘amateur sleuthing’

The barrister acting for Ben Roberts-Smith in his high-stakes defamation appeal has cautioned a court against “amateur sleuthing” as he urged a trio of judges to overturn a devastating decision dismissing the war veteran’s lawsuit.

Sydney silk Bret Walker, SC, who has acted in a string of high-profile appeals, delivered submissions in reply on Friday after The Age and The Sydney Morning Herald argued the Full Court of the Federal Court should not overturn Justice Anthony Besanko’s decision delivered last year. It marked the final day of the 10-day appeal and the court reserved its decision.

Ben Roberts-Smith leaving the Federal Court in Sydney in 2021.Credit: Rhett Wyman

Besanko found last June that the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was complicit in the murder of four unarmed prisoners while on deployment in Afghanistan between 2009 and 2012. This is lower than the criminal standard of beyond reasonable doubt. Roberts-Smith maintains his innocence.

Walker said “the heart of our case” was that “weight is to be given to the presumption of innocence” and “exactness of proof is expected”. In this case, “you certainly don’t have that”, Walker told the three-judge bench of the evidence marshalled by the newspapers.

“Of course it is possible in a case such as the present for the court to think there is something in the allegations brought against the person in question,” Walker said.

But he said it was also possible that, notwithstanding any misgivings, “there cannot be a finding with the sufficient degree of cogency required” in light of the gravity of the allegations.

Addressing one alleged murder, Walker said: “There is absolutely no evidence on the basis of which there can or should be amateur sleuthing in this court, I say that with great respect, concerning the scatter or otherwise of blood on things thought to be, or posited to be, held by a person who’s been shot.”

He said there was “simply no evidentiary basis for any of that”.

During Friday’s hearing, Walker was asked a series of questions by the court concerning findings made by Besanko that were not the subject of a challenge by Roberts-Smith’s team in the appeal.

He agreed the Roberts-Smith camp did not challenge the judge’s findings that a serving Special Air Service soldier dubbed Person 18, one of the newspapers’ witnesses, was honest and reliable.

However, Walker said later that “the fact that we don’t challenge something doesn’t mean … that my client accepts anything”, and the court could take it that “my client doesn’t accept that he lied”.

“Lest there be any doubt, can I spell that out,” he said.

The appeal court will deliver its decision at a later date.

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