‘Immaterial': Why BRS appeal over war crime findings failed
The judge who presided over the Ben Roberts-Smith blockbuster defamation trial made two errors however they were 'immaterial' and did not mean his findings should be overturned, the Full Court of the Federal Court has found.
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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The Advertiser
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It later emerged it was a hoax, with senior NSW police telling Mr Roberts' inquiry they believed virtually from the outset it was a ruse. In a letter to the committee announcing their intention not to attend, the staffers say appearing before the inquiry "would be at odds with the principles of ministerial accountability". Mr Roberts pressed against that motion on Friday as he addressed empty chairs. "The committee is not seeking to sanction ministerial staff for their actions, only to shed light on the events in the lead up to the passage of the hate speech and protest laws through parliament," Mr Roberts said. Mr Minns attacked the upper house on Thursday for trying to get government staff to appear at inquiries "on a routine basis" - "almost like they're criminals and under investigation, or they should front some kind of Star Chamber inquiry". "And if not, they're under threat of arrest," he said. As members of the lower house, Mr Minns and Ms Catley cannot be compelled to appear at the upper house inquiry to give evidence. But staffers can be forced to appear. Another staffer named in the motion, Mr Minns' deputy chief of staff Edward Ovadia, said in the letter he should be excused from attending the committee because he was on leave at the time and did not attend meetings. The premier and police minister say they have commented extensively on the matter, including at parliamentary hearings and press conferences and during question time. Five senior government staffers could face arrest after failing to appear at an inquiry into an explosive-laden caravan found on Sydney's outskirts. In a dramatic escalation of an otherwise routine inquiry, the process to arrest the high-ranking staff in the offices of NSW Premier Chris Minns and Police Minister Yasmin Catley was set in motion on Friday after the quintet declined to appear. Committee chair and independent MP Rod Roberts conducted a roll call for the premier's chief of staff James Cullen and four other staffers before approaching upper house president Ben Franklin to seek arrest warrants. Mr Roberts said the president was non-committal when asked to go to the Supreme Court for the warrants, but Mr Franklin had a "very important and very crucial decision". "All along, Labor has tried to stonewall, delay and ridicule this important inquiry," fellow committee member John Ruddick said on social media. Agreeing to pursue the warrants could come with a personal awkwardness for Mr Franklin, given he is the godfather of the premier's second child. Arrest warrants can be issued to force a witness to attend an inquiry while witnesses who refuse to answer questions can face jail time. 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Mr Roberts said the president was non-committal when asked to go to the Supreme Court for the warrants, but Mr Franklin had a "very important and very crucial decision". "All along, Labor has tried to stonewall, delay and ridicule this important inquiry," fellow committee member John Ruddick said on social media. Agreeing to pursue the warrants could come with a personal awkwardness for Mr Franklin, given he is the godfather of the premier's second child. Arrest warrants can be issued to force a witness to attend an inquiry while witnesses who refuse to answer questions can face jail time. NSW Opposition Leader Mark Speakman said the failure of Mr Minns' staff to appear at the probe into controversial protest and hate speech legislation indicated the premier might have breached corruption rules. "If the premier has given a direction to staff to disobey a lawful requirement to appear, that would appear to be a breach of the ministerial code," he said. The protest and speech laws were rushed through the NSW parliament in February after explosives, anti-Semitic messaging and a list of addresses of Jewish people and institutions were found inside the caravan at Dural in Sydney's northwest on January 19. The discovery prompted fears of a terrorist attack or mass-casualty event, as the premier and Prime Minister Anthony Albanese immediately dubbed it. It later emerged it was a hoax, with senior NSW police telling Mr Roberts' inquiry they believed virtually from the outset it was a ruse. In a letter to the committee announcing their intention not to attend, the staffers say appearing before the inquiry "would be at odds with the principles of ministerial accountability". Mr Roberts pressed against that motion on Friday as he addressed empty chairs. 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The premier and police minister say they have commented extensively on the matter, including at parliamentary hearings and press conferences and during question time.
Sky News AU
10 hours ago
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NSW Premier Chris Minns staffers facing potential arrests after skipping major inquiry into Dural explosives
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7NEWS
14 hours ago
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Arrest push on senior Minns, Catley staffers after they fail to attend caravan plot inquiry
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