Key Points
- Roberts-Smith is appealing a Federal Court judgment that dismissed his defamation case.
- His case centred on reports over his involvement in the murder of four unarmed prisoners while in Afghanistan.
- Roberts-Smith denies any wrongdoing and has not been criminally charged.
Allegations Ben Roberts-Smith dragged a prisoner with a prosthetic leg outside an Afghan compound before machine-gunning him were backed up by numerous witnesses, a court has heard.
The decorated war veteran is appealing a Federal Court judgement that in June dismissed his defamation case over 2018 reports about his involvement in the murder of four unarmed prisoners while deployed in Afghanistan in 2009 and 2012.
On Tuesday, a barrister representing the newspapers behind the reports said allegations about the murder of a prisoner with a prosthetic leg outside a compound called Whiskey 108 had been corroborated by four soldiers.
Roberts-Smith claims he shot the man legitimately because he was a Taliban insurgent.
But barrister Nicholas Owens said three witnesses gave "strikingly coherent accounts" of the 45-year-old ex-soldier manhandling the man before throwing him to the ground and machine-gunning him in 2009.
"All three of them support that coherent and essential narrative," he told the Full Court.
A fourth witness said he had seen the body on the ground and recognised the man as a prisoner who had been brought out of a tunnel discovered in the Whiskey 108 compound.
The media reports were published by the Nine-owned Sydney Morning Herald and the Age, as well as the Canberra Times.
They alleged that, in addition to killing the man with the prosthetic leg, Roberts-Smith also ordered a junior member of the SAS to kill another unarmed prisoner found in the Whiskey 108 tunnel in order to "blood the rookie."
The Victoria Cross recipient does not dispute the killing occurred but claims the man was shot lawfully.
Owens said there was a "powerful inference" that the junior soldier, known as Person Four, had stopped to put a suppressor on his M4 rifle before shooting the man in the head.
"It is inconsistent with a legitimate engagement because it implies a level of premeditation," he said.
"That is only consistent with the illegitimate nature of the killing, because there is no reason to conceal a killing which is a lawful engagement."
Roberts-Smith was also said to have kicked handcuffed prisoner Ali Jan off a cliff before dragging him across a creek bed and ordering his execution in a cornfield near the village of Darwan in September 2012.
Owens said Afghan villagers called to give evidence about this killing should be believed because their version of what happened was consistent with what Australian soldiers had recalled.
The ex-SAS corporal also ordered the execution of a prisoner after a weapons cache was found in the village of Chinartu in October 2012, justice Anthony Besanko found.
Owens said three witnesses had given "strikingly coherent accounts" of Roberts-Smith manhandling the prisoner before throwing him to the ground and machine-gunning him in 2009. Source: AAP / Flavio Brancaleone
He argued the judge had engaged in "thorough, detailed (and) careful" reasoning in his 2,600-paragraph judgement.
The barrister urged the appeals court to dismiss arguments by Roberts-Smith's lawyers that Besanko had not adequately explained why he had accepted certain pieces of evidence and rejected others.
"Obviously I can't make such a facile submission as to say look how long this judgement is already, are you really saying it should be longer?" he said.
"One cannot seriously contend that this judgement does not reflect a very careful and thorough analysis of the issues, factual and legal, that were thrown up in a very complicated case."
If Roberts-Smith succeeds on his appeal, the Full Court will need to consider whether to make new findings or to send the case back for a supplementary hearing or a complete retrial.
The trial ran for 110 days over about a year and was estimated to have cost the parties at least $25 million before the appeal.
Roberts-Smith denies any wrongdoing and has not been criminally charged.
The hearing continues.
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