Ben Roberts-Smith: OSI uncovers new war crimes evidence, secures fresh witnesses
During his opening remarks at the start of the case, Roberts-Smith's barrister, Bruce McClintock, told the court: 'My client did not drink from the leg. The respondents have been desperately trying to find evidence that he did, but he never did.'
When he was directly asked in court during cross-examination: 'Did you yourself drink from the leg?' , Roberts-Smith replied: 'No, I didn't.'
However, the video uncovered by the OSI shows the disgraced soldier being passed the prosthetic leg before sculling from it during a party at the Fat Lady's Arms.
Ben Roberts-Smith (left) with a former colleague drinking from the prosthetic leg of a dead Afghan man in 2012.
On Tuesday, the full bench of the Federal Court released their judgment, explaining why they upheld Justice Besanko's 2023 decision that Roberts-Smith was complicit in the murder of four unarmed prisoners, including the man with the prosthetic leg, while deployed in Afghanistan between 2009 and 2012.
Federal Court justices Nye Perram, Anna Katzmann and Geoffrey Kennett found the evidence was sufficiently cogent to conclude that Roberts-Smith was a war criminal who had disgraced his country and the SASR, including by having machine-gunned the unarmed prisoner with a prosthetic leg outside Whiskey 108.
The three senior judges said the latter finding was based on the compelling testimony of three of Roberts-Smith's fellow SASR soldiers.
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'The problem for [Roberts-Smith] is that, unlike most homicides, there were three eyewitnesses to this murder,' the three judges concluded.
'When all is said and done, it is a rare murder that is witnessed by three independent witnesses. This strength of this evidence cannot be erased, and is in no way undermined, by peripheral inconsistencies.'
The appeal court also said that 'the killing of the man with the prosthetic leg in such a dramatic fashion does suggest a certain recklessness or perhaps even brazenness' on Roberts-Smith's part.
While Roberts-Smith still denies wrongdoing, and has vowed to continue his legal fight to clear his name by challenging the four judges' findings in the High Court, the revelation the OSI has also secured the co-operation of witnesses who did not testify in the defamation trial, or gave only limited testimony, is a blow to the disgraced ex-soldier and former Seven West Media executive.
The OSI is staffed with elite detectives from state police forces, including handpicked homicide investigators.
Sources said its inquiries had proceeded far more slowly than the agency had hoped, but this was due to a painstakingly exhaustive and risk-averse approach adopted by OSI chief, former top prosecutor and judge Mark Weinberg.
Weinberg has sought to avoid the legal pitfalls that led to the abandonment in 2021 of an earlier federal police war crimes investigation targeting Roberts-Smith.
The OSI is working with the AFP to target Roberts-Smith and has secured more evidence and witness co-operation than the stymied federal police probe.
The OSI probe is not only aimed at seeking to prosecute Roberts-Smith but several of his accomplices who, like the disgraced war hero, were also found to have lied during the defamation proceedings to cover up war crimes.
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Billionaire Gina Rinehart emerged this week as Roberts-Smith's latest mega-wealthy public supporter, describing him as 'brave and patriotic' and claiming the reporting of his actions in Afghanistan as weakening the defence forces.
Her statement has angered SASR veterans who believe the mining magnate's defence of the war criminal is misguided and offensive to Australian veterans who repeatedly deployed to Afghanistan and are against the execution of civilians and prisoners.
'If Rinehart has read the full court's judgment, she must know it was other regiment blokes that are the ones that have stood up against his [Roberts-Smith's] crimes. There is nothing honourable about kicking an Afghan farmer off a cliff,' one SASR insider who served alongside Roberts-Smith said.
A second SASR insider who also served in Afghanistan said he believed Rinehart's advocacy was at odds with 'the views of most Australians who don't want their soldiers executing civilians or prisoners'.
'We don't do that,' the SASR veteran said, claiming that Roberts-Smith's decision to spend millions of dollars on defamation proceedings had brought untold 'trauma' for soldiers subsequently caught up in his legal fight.
Rinehart has refused to say if she is funding Roberts-Smith's ongoing legal battles, with
his former employer, Channel Seven owner Kerry Stokes, no longer footing the war criminal's bill.
Rinehart was approached for comment.
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