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.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
News.com.au
39 minutes ago
- News.com.au
Teenager stabbed in vicious attack outside Wynyard train station in Sydney CBD
A teenager has been stabbed in the abdomen at a bus stop in Sydney's bustling centre business district. At around 5am on Friday morning, a 19-year-old man was stabbed outside the busy Wynyard Railway Station. NSW Police said officers responded about 5.30am after 'a man was found suffering a stab wound to his abdomen' at the corner of George and Angel streets. 'Police rendered first aid until NSW Ambulance paramedics arrived and the man was taken to St Vincents Hospital for further treatment,' a spokesman said. 'A crime scene was established and police immediately commenced an investigation into the incident. 'Following inquiries, police believe the stabbing happened at a bus stop outside Wynyard Railway Station on Carrington Street.' Police want to speak with a man who was seen in the area at the time of the incident. He is described as being of Mediterranean/Middle Eastern appearance, with facial hair and was wearing a beige coloured hooded jumper and light coloured pants.
News.com.au
an hour ago
- News.com.au
‘You die': New York mafia boss unleashes on gangs in Sydney, Melbourne
Crime gangs playing out their drug wars on Sydney and Melbourne streets are lacking the moral compass of old school New York criminals who made sure 'their own' were protected, according to Michael Franzese, one of the world's most powerful former mob bosses. 'I spent over 20 years in that life, I grew up in it with my father, a major figure, and the truth is we didn't go around killing innocent people, we took care of people in our neighbourhood,' Franzese told 'You couldn't get involved in the drug business, you deal with drugs you die.' Franzese said allowing innocent people to get caught in the crossfire of organised crime was an example of 'morality being at an all time low'. Since the gang war in Sydney began in October 2020, 28 people have been shot and killed – eight of them innocent people, while a further six have been injured – many of them children. On Monday a f50-year-old emale kebab shop worker was caught in the crossfire, critically injured when two men stormed the store and opened fire. Melbourne is facing the same crisis, and was shocked in January this year when 27-year-old 'completely innocent' Katie Tangey died after arsonists linked to the city's tobacco wars hit the wrong house. Franzese said the rise in attacks on innocent people was a reflection on the deterioration of society in general. 'I think it's a reflection on the decline generally of the world we live in. When the mafia originally started in the US there were lots of street gang wars, innocent people caught in the crossfire but it was all straightened out, divided into families and we were very careful,' the 73-year-old said on the eve of his Australian visit. 'We had a code of conduct. Today I would say it's the attitude in general. The conduct has been deteriorating.' Franzese, who was played by Joseph Bono in Martin Scorsese's classic movie Goodfellas, was the caporegime of the New York Colombo crime family but left in 1995 after serving eight years for a $520m tax dodge. He became a major target of law enforcement and was arrested 18 times, indicted seven times and had two federal racketeering cases brought against him, one by former New York Mayor Rudy Giuliani. These days Franzese travels the world telling stories of his mob days, being as 'honest' as he can about his violent way of life, hoping he can wipe some of the shine, courtesy of Hollywood, of a career in crime. 'I like to be as honest as I can, it gives me a lot of credibility,' he says, though shying away from directly answering a question about whether he has committed murder. 'When people ask me that I tell them I lived a violent life at a violent time and if you're part of the life then you are part of the violence. People are usually satisfied with that answer.' Forced to postpone his planned trip to Australia because of immigration hold-ups, Franzese has now provided all the paperwork about his criminal history to satisfy officials and will hold talks in Sydney and Melbourne in July. 'There's a lot of interest in my former life especially in the last four or five years because of social media raising the level of interest about mafia and mob life in general,' Franzese said. 'No doubt Hollywood has played the major part. There has never been any kind of organised crime life that has been romanticised and publicised by the media and entertainment industry as much as the New York mob life,' he said. 'No other group has been covered in such a romantic way.' But the reality is a world away. 'People were very upset when I walked away. The bottom line is I had a lot of years where I struggled because my boss was very upset and took it very personally,' he said. 'You are not allowed to walk away. I need to lie very low, I moved to California. The bottom line is I did not join witness protection or cause hurt to anybody so it turned out okay for me.' The catalyst was a woman. 'I wanted to marry her. The mob life, the mafia life, it's a bad lifestyle. I don't call the guys bad, I had many friends. Good people do bad things. Some very good people did bad things and at the time we believed it was justified. 'The life is bad though because I don't know any family member of that life that wasn't devastated. My dad was in prison for 42 years. My mum blamed him for everything, and rightly so. 'I knew I had to change to preserve my family. I chose my wife over the life. We've been married for 40 years so I made the right decision.'
ABC News
an hour ago
- ABC News
West Australian marine business actively considering bid for Darwin Port
The business behind two major new West Australian marine infrastructure projects is considering a bid for the Darwin Port, as the federal government seeks a buyer to get it "back under Australian control". The Darwin Port was controversially leased by the Northern Territory government to Chinese-owned firm Landbridge for 99 years in 2015, and since then the facility has been a lightning rod for national security debate. Although no security risks have ever been proven regarding the port's lease, both Labor and the Coalition promised to return the port to Australian operation during the recent federal election campaign. The Australian government has said it is negotiating with parties over the port's future, but it has not yet revealed exactly which companies or consortiums could be in the running to bid for the lease. Founder of the Kimberley Marine Support Base in Broome and the Onslow Marine Support Base in the Pilbara, Andrew Natta, said the private Australian business was actively considering a bid for the Darwin Port. While the Onslow and Kimberley projects exist as separate entities, they share a common founder in Mr Natta and overlapping shareholders. "If you look at what our business has done in Western Australia … it makes sense for us to consider the opportunity, for sure," Mr Natta said. "If you look at our history and you look at what we're investing in in Broome, the piece of infrastructure [Kimberley Marine Support Base] that we're building now is almost $250 million. Mr Natta said he had not yet met with representatives from the federal or NT governments over his business' potential ambitions to take on the Darwin Port, but that it was likely on the cards for the near future. "At this point in time we're definitely saying that there is interest, and more than likely, yes, we would go forward and [meet with government]," he said. Both the Kimberley and Onslow port infrastructure projects have been vocally supported by the West Australian government, which has praised their potential to build capacity across multiple industries. Mr Natta said the aim would be to bring a similar ethos to "enhancing" the Darwin Port. "If we were to consider Darwin Port, we would be investing in a way that is very generational, very patient, but at the same time, enhancing," he said. He did not weigh into the controversy surrounding Darwin Port's current leaseholder, Landbridge, but said he believed there was merit in having the facility back in Australian hands. "I don't have a comment on the current ownership other than I think that it works very well when we have an all-Australian partnership, and that we can help facilitate those that need a port," he said. While the federal government has not yet revealed who it has been speaking to regarding the Darwin Port's future, a number of companies have reportedly shown interest. US private equity firm Cerberus Capital Management, which has strong links to the Trump administration, has reportedly been working towards a joint bid for the port with Australian-registered firm Toll Group. Neither company has confirmed if that bid is going ahead. The federal government has also said it has been speaking with superannuation firms over the port's future. Landbridge Group has repeatedly said it is not searching for a buyer. Earlier this month, Landbridge's non-executive director for Australia, Terry O'Connor, told 7.30 he believed the company had been subjected to a campaign of "myths and mistruths", including by ministers in the Australian government, over the port's lease. Federal Infrastructure Minister Catherine King said in a statement on Friday that "the Australian government is working closely with the Northern Territory government on next steps". "It would not be appropriate to comment further on matters that may be the subject of commercial negotiations," she said. The ABC understands the federal government has been approached by a number of interested parties. NT Treasurer Bill Yan said the territory government was "working alongside our Commonwealth counterparts in the best interests of Australia and the NT". "We will not pre-empt that work," he said.
