Latest news with #JusticeBesanko
ABC News
20-05-2025
- Politics
- ABC News
Ben Roberts-Smith defamation case appeal dismissal judgment released by Federal Court
The Federal Court has published its reasons for dismissing war veteran Ben Roberts-Smith's bid to overturn his defamation loss, which found the Victoria Cross recipient complicit in war crimes while deployed to Afghanistan. The former Special Air Service Regiment (SASR) corporal launched an appeal after losing his defamation case against three Nine-owned newspapers following a civil trial, which ran for more than 100 days over 2021 and 2022. Mr Roberts-Smith's appeal, which was heard in February last year, was unanimously thrown out by the full bench of the Federal Court on Friday. Federal Court Justices Geoffrey Kennett, Nye Perram and Anna Katzmann found "the evidence was sufficiently cogent to support the findings that the appellant [Mr Roberts-Smith] murdered four Afghan men". The publication of the court's reasons for its decision was briefly delayed to give the Commonwealth the opportunity to redact any evidence that may present national security concerns. "In a long, careful and clear judgment the primary judge [Justice Anthony Besanko] correctly identified and applied the relevant legal principles and paid close attention to the serious nature of the allegations and the standard of proof," the judgment read. "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." One of the allegations against Mr Roberts-Smith, which was found to be substantially true to a civil standard, was that the soldier committed murder by machine gunning an Afghan man with a prosthetic leg outside a compound during a mission on Easter Sunday in 2009. In its appeal judgment, the court characterised the unlawful killing as "dramatic" and suggested a sense of "brazenness" on Mr Roberts-Smiths part considering the presence of three witnesses. "The killing of the man with the prosthetic leg in such a dramatic fashion does suggest a certain recklessness or perhaps even brazenness on the part of the appellant," the Federal Court found. "The problem for the appellant is that, unlike most homicides, there were three eyewitnesses to this murder." "The appellant's efforts to construct uncertainty out of inconsistencies in peripheral detail are unpersuasive." The full bench also upheld the allegation against Mr Roberts-Smith that during the same mission, he authorised the execution of an unarmed Afghan by a junior trooper in his patrol as an act of "blooding the rookie". "For completeness, we are satisfied that the evidence concerning the blooding the rookie allegation was not only cogently, but in fact powerfully, probative that the appellant and Person 5 had succeeded in having Person 4 kill someone and this is so taking into account the seriousness of the allegation and the presumption of innocence," the judgment read. The court also rejected Mr Roberts-Smith's claim that Justice Besanko failed to give weight to his presumption of innocence. "These were no mere ritualistic incantations, as the appellant suggested," the judgment read. "It is apparent that His Honour was acutely conscious of the seriousness of the findings the respondents called upon him to make and of the necessity that he be reasonably satisfied that the imputations were substantially true without resorting to inexact proofs, indefinite testimony or indirect inferences." Mr Roberts-Smith indicated on Friday that he would immediately seek a High Court challenge to the Federal Court's dismissal of his appeal and application to reopen the matter with the inclusion of new evidence.
West Australian
20-05-2025
- West Australian
Sad but simple explanations in veteran's lost appeal
Fear of reprisal drove soldiers serving alongside disgraced veteran Ben Roberts-Smith to look the other way as he committed war crimes, appeal judges have found. The Federal Court on Tuesday published its reasons for dismissing Roberts-Smith's appeal against the finding he was responsible for the murder of four unarmed civilians in Afghanistan. The incidents, first reported by journalists Nick McKenzie and Chris Masters in Nine newspapers in 2018, sparked a years-long defamation fight. Justice Anthony Besanko in 2023 found the claims were substantially true. The court dismissed the Victoria Cross recipient's appeal against that finding on Friday, adding to a legal bill expected to run into the tens of millions of dollars. Roberts-Smith argued the judge erred in finding he killed a man with a prosthetic leg and ordered the execution of another, elderly man at a compound called Whiskey 108 in order to "blood the rookie". The judge failed to give weight to official records suggesting the pair were insurgents legitimately killed while fleeing the compound, or adequately deal with the improbability of a widespread conspiracy to conceal the truth when those records were made, the appeal argued. Rather than a widespread conspiracy, the court ruled there were other, simpler explanations. "It can be explained by the more pedestrian, if disappointing, path of widespread individual failure. "All the soldiers that knew or suspected looked the other way," Justices Nye Perram, Anna Katzmann and Geoffrey Kennett said in the published findings. Soldiers told the court they feared reprisal. "I was afraid what would possibly happen to me if I was seen to be the bloke who was speaking out about incidents and not playing the team game," one said. "The primary judge's conclusion that the soldiers had reasons not to speak out was, as His Honour correctly observed, part of the sad facts of the case," the appeal judges said. Roberts-Smith bringing the prosthetic leg back to Australia and encouraging other soldiers to drink beer out of it was also found to be substantially true by the primary judge and was among the findings for which appeals were dismissed. The appeal court found no errors in Justice Besanko's finding that Roberts-Smith had murdered a man named Ali Jan by kicking him off a cliff and ordering another soldier to shoot him. The September 11, 2012, incident in the Afghanistan village of Darwan was among other reported claims found to be substantially true that conveyed to readers that Roberts-Smith was a war criminal who had disgraced his country and its army. Similarly, no errors were found in a finding Roberts-Smith ordered another soldier, through an interpreter, to shoot a detained man in nearby Chinartu about a month later. An argument Justice Besanko failed to apply legal principles for determining truth was also rejected. The court ruled he had carefully and repeatedly adhered to them, discussing them at length in his reasoning. The trial judge was "acutely conscious of the seriousness of the findings", resisting some when nonetheless compelling evidence was insufficient, the appeal court said. He had also rejected evidence from Roberts-Smith and others as false. Two errors in the primary judge's reasoning were detected but ruled immaterial on the appeal. The trial ran for 110 days, stretched out over more than a year. More than a thousand documents were tendered and 44 witnesses were called. The appeal itself took 10 days, with numerous pre-trial and post-trial hearings, taking the case's total estimated bill north of $30 million. Roberts-Smith plans to appeal to the High Court. "I continue to maintain my innocence and deny these egregious, spiteful allegations," he wrote in a statement on Friday. Lifeline 13 11 14 Open Arms 1800 011 046
Perth Now
20-05-2025
- Perth Now
Sad but simple explanations in veteran's lost appeal
Fear of reprisal drove soldiers serving alongside disgraced veteran Ben Roberts-Smith to look the other way as he committed war crimes, appeal judges have found. The Federal Court on Tuesday published its reasons for dismissing Roberts-Smith's appeal against the finding he was responsible for the murder of four unarmed civilians in Afghanistan. The incidents, first reported by journalists Nick McKenzie and Chris Masters in Nine newspapers in 2018, sparked a years-long defamation fight. Justice Anthony Besanko in 2023 found the claims were substantially true. The court dismissed the Victoria Cross recipient's appeal against that finding on Friday, adding to a legal bill expected to run into the tens of millions of dollars. Roberts-Smith argued the judge erred in finding he killed a man with a prosthetic leg and ordered the execution of another, elderly man at a compound called Whiskey 108 in order to "blood the rookie". The judge failed to give weight to official records suggesting the pair were insurgents legitimately killed while fleeing the compound, or adequately deal with the improbability of a widespread conspiracy to conceal the truth when those records were made, the appeal argued. Rather than a widespread conspiracy, the court ruled there were other, simpler explanations. "It can be explained by the more pedestrian, if disappointing, path of widespread individual failure. "All the soldiers that knew or suspected looked the other way," Justices Nye Perram, Anna Katzmann and Geoffrey Kennett said in the published findings. Soldiers told the court they feared reprisal. "I was afraid what would possibly happen to me if I was seen to be the bloke who was speaking out about incidents and not playing the team game," one said. "The primary judge's conclusion that the soldiers had reasons not to speak out was, as His Honour correctly observed, part of the sad facts of the case," the appeal judges said. Roberts-Smith bringing the prosthetic leg back to Australia and encouraging other soldiers to drink beer out of it was also found to be substantially true by the primary judge and was among the findings for which appeals were dismissed. The appeal court found no errors in Justice Besanko's finding that Roberts-Smith had murdered a man named Ali Jan by kicking him off a cliff and ordering another soldier to shoot him. The September 11, 2012, incident in the Afghanistan village of Darwan was among other reported claims found to be substantially true that conveyed to readers that Roberts-Smith was a war criminal who had disgraced his country and its army. Similarly, no errors were found in a finding Roberts-Smith ordered another soldier, through an interpreter, to shoot a detained man in nearby Chinartu about a month later. An argument Justice Besanko failed to apply legal principles for determining truth was also rejected. The court ruled he had carefully and repeatedly adhered to them, discussing them at length in his reasoning. The trial judge was "acutely conscious of the seriousness of the findings", resisting some when nonetheless compelling evidence was insufficient, the appeal court said. He had also rejected evidence from Roberts-Smith and others as false. Two errors in the primary judge's reasoning were detected but ruled immaterial on the appeal. The trial ran for 110 days, stretched out over more than a year. More than a thousand documents were tendered and 44 witnesses were called. The appeal itself took 10 days, with numerous pre-trial and post-trial hearings, taking the case's total estimated bill north of $30 million. Roberts-Smith plans to appeal to the High Court. "I continue to maintain my innocence and deny these egregious, spiteful allegations," he wrote in a statement on Friday. Lifeline 13 11 14 Open Arms 1800 011 046
News.com.au
20-05-2025
- Politics
- News.com.au
‘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.
West Australian
20-05-2025
- Politics
- West Australian
‘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. More to come
