‘Immaterial': Why BRS appeal over war crime findings failed
The judge who presided over the Ben Roberts-Smith blockbuster defamation trial made two errors however they were 'immaterial' and did not mean his findings should be overturned, the Full Court of the Federal Court has found.
Roberts-Smith was last week struck a massive blow when he failed in his bid to overturn his loss to Nine Newspapers over a series of stories making war crime allegations relating to his deployment in Afghanistan.
In a landmark judgment, Federal Court justice Anthony Besanko in June 2023 dismissed Roberts-Smith's multimillion-dollar lawsuit against The Sydney Morning Herald, The Age and Canberra Times and found that he was involved in the murder of four unarmed men.
His appeal to the Full Court of the Federal Court was on Friday dismissed by justices Nye Perram, Anna Katzmann and Geoffrey Kennett.
The court's full reasons were published on Tuesday.
The court found that while Justice Besanko made two errors in his judgment, they were described as 'immaterial'.
'They do not affect His Honour's conclusions on any of the critical questions,' the Full Court of the Federal Court found.
' … In a long, careful and clear judgment, the primary judge correctly identified and applied the relevant legal principles and paid close attention to the serious nature of the allegations and the standard of proof.
'His Honour repeatedly reminded himself that the respondents bore the onus of proving the substantial truth of the imputations and of the cogency of the evidence necessary to discharge it.'
Roberts-Smith has already vowed to take his fight to the High Court of Australia.
Among the findings that Roberts-Smith was seeking to overturn was the allegation that he took part in the murder of a handcuffed shepherd, Ali Jan, at Darwan in September 2012.
Roberts-Smith also disputed findings that he was involved in the killings of two prisoners at a compound called 'Whiskey 108' in 2009.
According to the allegations, Roberts-Smith shot one man in the back and directed a 'rookie' soldier to shoot another prisoner.
He was also found, during an operation at Chinartu, to have directed members of the Afghan partner forces to shoot a man following the discovery of a cache of weapons.
Roberts-Smith continues to deny the allegations and in a statement on Friday said: 'Sunlight is said to be the best disinfectant, and I believe one day soon the truth will prevail.'
Roberts-Smith's lawyers had argued that Justice Besanko had failed to take into consideration the 'Briginshaw principle', which dictates that serious allegations should be treated cautiously when a court makes findings.
'We reject this argument,' the Full Court of the Federal Court found.
'The primary judge discussed the relevant principles at length in the early part of his reasons and repeatedly reminded himself of them.'
It found that Justice Besanko repeatedly mentioned in his judgment the important legal principles of the presumption of innocence and the seriousness of the findings that he had to make.
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