Veteran takes last shot to overturn war crime findings
One of Australia's most decorated soldiers has seized a final chance to clear his name of war crime allegations by taking the fight to the nation's highest court.
Ben Roberts-Smith sued Nine newspapers for defamation over reports in 2018 that claimed he was complicit in the murder of four unarmed civilians in Afghanistan.
Justice Anthony Besanko in 2023 found the claims were substantially true and his findings were upheld by the Federal Court in May after the soldier launched an unsuccessful appeal.
But Roberts-Smith, who maintains his innocence, lodged an application on Monday for special leave to appeal both decisions.
The former soldier maintains the war crimes claims did not meet the exceptional degree of cogency required for such serious allegations.
"The findings brand the applicant a serial war criminal, a criminal condemnation of the most ruinous kind, yet they were reached in civil proceedings absent the criminal trial safeguards," his lawyers wrote in the application.
The findings rest on "inconsistent and memory-impaired recollections" adduced more than a decade after the event that were erroneously preferred over "exculpatory" operational records, they argued.
While acknowledging the civil standard of proof is the balance of probabilities rather than the higher criminal standard, Roberts-Smith's lawyers say the gravity of the offences required an equivalent standard of proof.
"Allegations of war crimes cannot be upheld in civil proceedings unless proved to the exacting degree of cogency that (the Evidence Act) unequivocally demands," they said.
The Victoria Cross recipient has not been charged with criminal wrongdoing.
Roberts-Smith claims the Federal Court also made an error in assuming he had accepted some allegations which were not re-contested during the appeal.
That acceptance was used to bolster the conclusions he was responsible for the murder of four civilians, his lawyers contend.
The former SAS corporal is asking for the Federal Court's decision to be overturned and Nine to be ordered to pay his costs for the trial, appeal and High Court contest.
The costs of the 110-day trial and the 10-day appeal are estimated to exceed $30 million.
The High Court will consider the special leave application and might not announce a decision for weeks.
Roberts-Smith was in 2011 awarded Australia's highest military honour, the Victoria Cross, for single-handedly taking out machine-gun posts to protect pinned-down fellow soldiers in Afghanistan.
Later named Australian Father of the Year, his reputation was tarnished by Nine's explosive reports in 2018 alleging he was complicit in war crimes.
One of the allegations taken to be proven on the balance of probabilities was that Roberts-Smith ordered the execution of an elderly prisoner to "blood the rookie" during a raid on a compound known as Whiskey 108.
"The problem for (Roberts-Smith) is that, unlike most homicides, there were three eyewitnesses to this murder," the Federal Court judges said in their appeal decision.
"When all is said and done, it is a rare murder that is witnessed by three independent witnesses."
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