Accusations A court has heard that multiple witnesses supported Ben Roberts-Smith when he carried a prisoner wearing a prosthetic leg outside an Afghan compound before machine-gunning him.
The honourable combat veteran is appealing a decision made by a Federal Court in June to drop his defamation lawsuit on articles published in 2018 that claimed he killed four unarmed captives in Afghanistan between 2009 and 2012.
Four soldiers have confirmed claims of the death of a prisoner with a prosthetic limb outside of Whisky 108, according to a barrister for the publications that published the stories on Tuesday.
Roberts-Smith says he shot the man because he was an insurgent from the Taliban who was escaping the compound and was referred to as a “squirter”.
But according to attorney Nicholas Owens SC, three witnesses provided “strikingly coherent accounts” of the 45-year-old former soldier shoving the man to the ground and using a machine pistol on him in 2009.
He informed the Full Court, “All three of them support that coherent and essential narrative.”
Four witnesses reported seeing the man’s body on the ground and identifying him as a prisoner who had been taken from a tunnel found within the Whisky 108 facility.
The accusation was that, apart from the man with the prosthetic limb, Roberts-Smith allegedly gave the order to a junior SAS soldier to execute an additional unarmed prisoner discovered in the Whisky 108 tunnel with the intention of ‘blooding the rookie’.
Once more, the recipient of the Victoria Cross acknowledges that the man was shot legally, but he disputes that the killing happened.
According to Owens, there was a “powerful inference” that Person Four, the younger soldier, had paused to attach a suppressor to his M4 rifle before firing a shot to the head.
“It is inconsistent with a legitimate engagement because it implies a level of premeditation for want of a better word,” he stated.
“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.”
In September 2012, Roberts-Smith was allegedly reported to have kicked a prisoner who was handcuffed off a cliff and then ordered his execution near Darwan. In October of the same year, a weapons cache was discovered in Chinartu, leading to a separate order for the execution of a prisoner.
The former SAS corporal attempted to refute Justice Anthony Besanko’s initial conclusion that the reports were largely accurate, but Owens dismissed his argument on Tuesday.
He maintained that the judge’s 2600-paragraph ruling was the result of “thorough, detailed (and) careful” reasoning.
The barrister pleaded with the appeals court to reject the claims made by Roberts-Smith’s solicitors that Justice Besanko had not sufficiently provided an explanation for his decisions to accept and reject particular pieces of evidence.
“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 stated.
“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.”
Should Roberts-Smith’s appeal be successful, the Full Court will have to decide whether to remand the case for an additional supplementary hearing or a full retrial, or whether to issue fresh rulings of its own.
Prior to the appeal, it was estimated that the parties had spent at least $25 million on the trial, which lasted 110 days over roughly a year.
Roberts-Smith has not been charged with a crime and refutes any misconduct.
