SYDNEY, Australia – Lawyers representing Ben Roberts-Smith, Australia’s most decorated living soldier, argued in court that statements referring to “blooding the rookie” may have only involved lawful killing in combat, rather than proof of an unarmed Afghan being executed. The remarks were made during an appeal hearing in the Full Court of the Federal Court after Roberts-Smith lost a defamation lawsuit to Nine Newspapers last year.
Roberts-Smith filed the lawsuit in 2018 against the Sydney Morning Herald, The Age, and Canberra Times over their reporting of war crime allegations. However, his case was dismissed by Justice Anthony Besanko in June 2020. The appeal hearing, presided over by Justices Nye Perram, Anna Katzmann, and Geoffrey Kennett, is expected to last two weeks.
The allegations against Roberts-Smith claim his involvement in the unlawful killings of four prisoners in Afghanistan. While the Victoria Cross recipient has maintained his innocence, the findings were made based on the civil standard of proof, which is on the balance of probabilities.
During the appeal hearing, Roberts-Smith’s barrister, Bret Walker SC, argued that the evidence did not support Nine’s truth defense. He also contested that the “Briginshaw principle,” which requires caution when making grave findings based on serious allegations, was not properly considered by Justice Besanko.
The lawyer further argued that given the passage of time, the number of witnesses, and the “fog of war” conditions, it would be difficult to arrive at a definitive conclusion regarding the allegations.
Specifically, Roberts-Smith is contesting the findings related to his alleged involvement in the killings of two prisoners at a compound known as “Whiskey 108” in 2009. According to the allegations, he shot one man in the back and directed another soldier to shoot another prisoner.
In their notice of appeal, Roberts-Smith’s lawyers claimed that Justice Besanko made errors in finding that Roberts-Smith kicked an individual off a cliff and agreed with another soldier to shoot him. The appeal hearing is ongoing.
Throughout the proceedings, no direct quotes were attributed to news organizations, and all information was presented in accordance with AP News Style guidelines.