Ben Roberts-Smith has attacked a judge’s findings that he engaged in war crimes as improbable, speculative and based on unreliable witnesses.
The former SAS corporal has appealed a Federal Court judgment which last month found he engaged in unlawful conduct while deployed in Afghanistan including being involved in the murder of four unarmed prisoners.
Mr Roberts-Smith, who has always denied the allegations, suffered this legal loss as his defamation cases were dismissed against 2018 reports in Nine-owned papers The Age and The Sydney Morning Herald plus The Canberra Times.
He filed his appeal of the 2600-paragraph judgment on Tuesday.
In court documents viewed by AAP, the Victoria Cross recipient claims Justice Anthony Besanko made a number of critical errors when assessing evidence regarding whether or not any war crimes occurred.
He claims the judge “impermissibly construed” evidence two prisoners were unlawfully executed at an Afghan compound code-named Whiskey 108.
One was machine-gunned by Mr Roberts-Smith who then took his prosthetic leg back to Australia for use as a novelty drinking vessel, Justice Besanko found.
The other man was shot by a lower ranking soldier under order of Mr Roberts-Smith who wanted to “blood the rookie”.
The judge used circular reasoning and speculation, and cherry-picked the evidence to come to his findings that the news reports on the war crimes were substantially true to the civil standard of proof, wrote Mr Roberts-Smith in his notice of appeal.
It was also improbable there was a “widespread conspiracy to conceal the truth” about these two unlawful killings and the judge failed to deal with this problem, he wrote.
Other findings that the war veteran kicked a handcuffed prisoner off a cliff at Darwan and then ordered his execution, and that he ordered the killing of another prisoner in Chinartu, are also challenged as “inherently improbable” and “inconsistent” with other recountings of what happened.
Issues about the credibility of witnesses have also been raised with the former soldier arguing the court did not properly consider the contamination of testimony and recollections.
“Witnesses may give unreliable evidence for a number of reasons,” he wrote.
“The primary judge did not take into account the possibility the witnesses’ memory had become distorted or polluted over time because of intervening events.”
Afghan witnesses who backed the publishers’ claims had motives to lie including their “hatred of infidels” and the long periods of time in which they had been financially supported by the media firms.
Findings about the “unreliable” evidence given by military colleagues supporting Mr Roberts-Smith’s claimed innocence were also wrong, he said.
The former corporal is seeking to have the judgment overturned.
He has asked that the three-judge panel of the Full Federal Court then assess his claim for damages or remit the matter back to a single Federal Court judge other than Justice Besanko.
A date for the appeal hearing has not yet been set down.
The war veteran has agreed to pay the legal costs of the news outlets if his appeals are unsuccessful.
The publishers are also seeking additional indemnity costs from the former soldier as well as from the Seven Network and Kerry Stokes’ private firm Australian Capital Equity which financially supported the lawsuits.
The costs are estimated in the tens of millions of dollars after the hotly contested five-year legal battle culminated in a 110-day trial, which was partially conducted in closed court due to national security concerns.
In November 2020, a report into alleged war crimes by special forces in Afghanistan was released finding credible evidence 39 civilians and prisoners were unlawfully killed by Australian troops while two others were subject to cruelty from 2007 to 2013.
Two years later, more than 40 alleged offences were under investigation.
Mr Roberts-Smith has not been charged.
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