‘Immaterial': Why BRS appeal over war crime findings failed
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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Lifeline 13 11 14 Fullstop Australia 1800 385 578 A social media app has defended the ejection of a transgender woman, claiming the platform was needed as a safe space against "deplorable" behaviour from men. The Giggle for Girls app and founder Sall Grover are seeking to overturn a 2024 finding it discriminated against a transgender user by removing her from the women-only platform in September 2021. The platform was a "special measure" exempt from discrimination law because it sought to achieve substantial equality between men and women, an appeal court was told on Monday. The ability to create these kinds of special measures to promote equality would be frustrated if Justice Robert Bromwich's findings remained because they would - by definition - discriminate against some group of people, Noel Hutley SC said. "A special measure will exclude someone necessarily because it's otherwise not special," he told the Full Court of the Federal Court on Monday. The barrister said Ms Grover's intention behind the app was to provide a "safe space" for women. Evidence was shown to the court from women of sexual abuse, alcoholism, trolling and harassment from men who had found refuge on the Giggle platform. "It's got to the point to say that a by-blow of it is that certain people couldn't get onto it and were hurt by it - that's unfortunate," Mr Hutley said. The evidence showed "the most deplorable behaviour of men on the internet," he told a panel of three judges. The need for this type of space was "manifest" and it was a special measure despite excluding certain groups. Lawyers from the Sex Discrimination Commissioner have challenged this in court, saying "invidious discrimination" could be - on Giggle's view of the world - permitted to take place under the guise of a special measure. 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The barrister said Ms Grover's intention behind the app was to provide a "safe space" for women. Evidence was shown to the court from women of sexual abuse, alcoholism, trolling and harassment from men who had found refuge on the Giggle platform. "It's got to the point to say that a by-blow of it is that certain people couldn't get onto it and were hurt by it - that's unfortunate," Mr Hutley said. The evidence showed "the most deplorable behaviour of men on the internet," he told a panel of three judges. The need for this type of space was "manifest" and it was a special measure despite excluding certain groups. Lawyers from the Sex Discrimination Commissioner have challenged this in court, saying "invidious discrimination" could be - on Giggle's view of the world - permitted to take place under the guise of a special measure. When Mr Hutley said this was an "extreme example" and did not need to be considered, one judge pushed back - asking why someone seeking to actively harm another group would be protected. "Why would the (Sex Discrimination Act) then say that's OK?" Justice Melissa Perry asked. Mr Hutley replied by saying parliament had to form a compromise when enacting the legislation. "So you say as long as you have a purpose of achieving substantive equality between one of the protected groups, you're in, irrespective of the nature of any other purpose?" the judge asked. "Quite," Mr Hutley replied. "If your purpose was to advance women, (if another) purpose was to disadvantage men then there's nothing wrong with that." Justice Perry asked what Ms Grover meant when she said she wanted Giggle to be a women-only safe space. "Women who she had judged to look like women," Mr Hutley replied. "No, but you're going in circles," the judge noted. 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Lifeline 13 11 14 Fullstop Australia 1800 385 578 A social media app has defended the ejection of a transgender woman, claiming the platform was needed as a safe space against "deplorable" behaviour from men. The Giggle for Girls app and founder Sall Grover are seeking to overturn a 2024 finding it discriminated against a transgender user by removing her from the women-only platform in September 2021. The platform was a "special measure" exempt from discrimination law because it sought to achieve substantial equality between men and women, an appeal court was told on Monday. The ability to create these kinds of special measures to promote equality would be frustrated if Justice Robert Bromwich's findings remained because they would - by definition - discriminate against some group of people, Noel Hutley SC said. "A special measure will exclude someone necessarily because it's otherwise not special," he told the Full Court of the Federal Court on Monday. 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Lifeline 13 11 14 Fullstop Australia 1800 385 578
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Women's app makes case to 'disadvantage' for equality
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Ex-Trump prosecutor Jack Smith under investigation
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