Ben Roberts-Smith battles for last chance to overturn defamation loss in Australia's highest court
Ben Roberts-Smith has turned to Australia's highest court in a last-ditch effort to sue Nine Newspapers over war crime allegations.
Roberts-Smith claims the Federal Court bolstered its murder conclusions on the assumption that because he didn't challenge evidence, he accepted it as fact.
Roberts-Smith filed an application for special leave with the High Court of Australia on Wednesday, just a month after he failed to overturn his loss to Nine Newspapers over war crimes allegations made in a series of stories.
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 in a landmark judgment.
Justice Besanko found that Roberts-Smith was involved in the murder of four unarmed men during his deployment in Afghanistan.
The findings were made on the balance of probabilities, which is less than the criminal standard of beyond reasonable doubt.
His appeal to the Full Court of the Federal Court was dismissed by Justices Nye Perram, Anna Katzmann and Geoffrey Kennett in May
The court found that while Justice Besanko made two errors in his judgment, they were described as 'immaterial'.
Roberts-Smith's latest bid to overturn his defamation loss hinges on two grounds, including claims the Federal Court made an error by assuming he accepted facts because he didn't contest evidence.
'The Full Court erred by treating the appellant as affirmatively accepting facts that were not recontested, and using that assumed acceptance to bolster its murder conclusions, thus misconceiving the effect of unchallenged findings on appeal,' the special leave application stated.
The other ground argued the Federal Court preferred 'delayed, contradictory and memory-impaired' eyewitness accounts over Australian Defence Force (ADF) operational records.
This was in relation to Roberts-Smith's involvement in the murder of two prisoners at a compound called Whiskey 108 in 2009, the murder of a handcuffed shepherd Ali Jan at Darwan in 2012, and Roberts-Smith directing members of the Afghan partner forces to shoot a man following the discovery of a cache of weapons during an operation at Chinartu.
The application argues the findings of war crimes couldn't be reached to the requisite standard under the Evidence Act as they relied on 'inconsistent and memory-impaired recollections' from more than a decade after the events and despite 'exculpatory' ADF operational records.
ADF records document 'lawful engagements and no executions' and would-be engagements 'consistent with the laws of armed conflict', Roberts-Smith claims.
Further, the application claims the records were discounted on 'speculative or flawed grounds', including by treating them as 'no more than repetitions of the applicant's account' or rejecting them on 'asserted inconsistencies that arose only at trial and were not evident at the time of reporting' in the cases of Darwan and Chinartu.
Finally, it argued that the findings were reached without the 'criminal-trial safeguards of a jury, prosecutorial disclosure and proof beyond reasonable doubt', and the Evidence Act had been misapplied in regard to the satisfaction of 'facts tantamount to criminal guilt'.
Roberts-Smith continues to deny the allegations, last month releasing a statement that said: 'Sunlight is said to be the best disinfectant, and I believe one day soon the truth will prevail.'
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