Lawyers for Ben Roberts-Smith argue that any statements about “blooding the rookie” could have referred to a lawful killing in combat and was not proof that an unarmed Afghan was executed, a court has heard.
Mr Roberts-Smith, Australia’s most decorated living soldier, has appealed to the Full Court of the Federal Court following his damning defamation suit loss to Nine Newspapers last year.
He sued the Sydney Morning Herald, The Age and Canberra Times in 2018 over reporting of war crime allegations however Justice Anthony Besanko in June last year dismissed the case.
Mr Roberts-Smith is facing a two-week appeal hearing - before Justices Nye Perram, Anna Katzmann and Geoffrey Kennett - after Justice Besanko found that Mr Roberts-Smith, 45, was involved in the unlawful killings of four prisoners in Afghanistan.
The Victoria Cross recipient has always maintained his innocence and the findings were made to the civil standard of on the balance of probabilities, not the criminal standard of beyond a reasonable doubt.
His barrister, Bret Walker SC, has argued that the evidence did not support Nine’s truth defence.
He has also argued that Justice Besanko failed to take into consideration the “Briginshaw principle” which dictates that serious allegations should be treated cautiously when making grave findings.
Mr Walker on Tuesday told the court that it would be difficult to come to a conclusion about the allegations given the passage of time, the number of witnesses and because they relate to incidents in “the fog of war”
“It’s almost possible that a fact finder can’t be satisfied one way or another, or can’t be satisfied what really happened,” Mr Walker said.
“That is not a remote theoretical possibility only.”
Mr Roberts-Smith is disputing findings relating to allegations that he was involved in the killings of two prisoners at a compound dubbed “Whiskey 108” on Easter Sunday in 2009.
According to the allegations, Mr Roberts-Smith shot one man in the back and directed another soldier to shoot another prisoner.
In their notice of appeal, Mr Roberts-Smith’s lawyer argue that Justice Besanko adopted a flawed approach in finding that another soldier, person 5, in uncorroborated conversations, made reference to having “blooded the rookie”.
Mr Walker said the uttering of such a phrase did not mean that any killing was unlawful.
“There has to be a focus on what ‘blooding the rookie’ meant,” Mr Walker said.
He noted there could be an “innocent” understanding of a “confronting phrase”.
“Because there is, with great respect to the soldiers in question, just as much an application to a legitimate killing which some may say is part and parcel of a soldier’s job,” Mr Walker said.
“When one’s talking about blooding a rookie, in other words, perhaps confrontingly to civilians, that it is appropriate before an engagement that a rookie… should be blooded. That is, should kill a person.
“It is not saying that that should be done by way of murder.”
Justice Besanko also found allegations Mr Roberts-Smith murdered Ali Jan at Darwan in September 2012 to be substantially true, in circumstances where Mr Roberts-Smith allegedly kicked the handcuffed shepherd off a cliff.
In their notice of appeal, Mr Roberts-Smith’s lawyers have argued that Justice Besanko erred in finding that he kicked Ali Jan off the cliff and that he agreed with another soldier, person 11, that he should be shot.
In his judgment, Justice Besanko found that Mr Roberts-Smith “took some steps back and then moved forward and kicked Ali Jan off the small cliff”.
“The applicant and (another soldier) Person 11 conferred briefly. Person 11 shot Ali Jan who at that point was standing and still handcuffed,” Justice Besanko said in his judgment.
He further found that Ali Jan’s handcuffs were removed and a radio, known as an ICOM, was planted on his body by person 11 or Mr Roberts-Smith in what has been described as a “throwdown”.
“The applicant falsely reported that Ali Jan was a (Taliban) spotter who had been engaged in the cornfield,” Justice Besanko found.
Mr Walker on Tuesday argued that it was “pure speculation” to say either of the two men took part in a “throwdown”.
“You can’t say (the radio) was in anybody’s kit, you can’t say it was in anybody’s plan to have it beforehand. You can’t say it was found elsewhere in the compound. You can’t say it was provided by one the Afghan (persons under control) … You can’t say it was found in the course of moving from compounds to the cornfield,” Mr Walker said.
“Of course that’s speculation to suppose it came from anywhere else.”
The hearing continues on Wednesday.