Roberts-Smith is seeking to reverse his legal loss againstThe Age andThe Sydney Morning Herald after Federal Courtand found he was complicit in the murder of four unarmed Afghan prisoners.
Besanko found the newspapers had proven on the balance of probabilities that Roberts-Smith was involved in the murders while on deployment in Afghanistan between 2009 and 2012. The judge’s finding is lower than the criminal standard of beyond reasonable doubt.
The former Special Air Service corporal’s legal team – – argued last week that Besanko did not have before him to justify making such grave findings against their client when the former soldier was entitled to the presumption of innocence.
But Nicholas Owens,SC – acting for the newspapers – on Wednesday attacked the substance of Roberts-Smith’s appeal,urging the justices to believe the evidence given by witnesses from a remote Afghan village who were present when Roberts-Smith murdered Jan in 2012.
Owens told the court that when the justices undertook examination of the evidence provided by the Afghan witnesses,they should recall the “the absolutely full-throated … nature of the attack on them at trial” by Roberts-Smith’s lawyers.
“It wasn’t,‘Let’s look at the detail of your case’ – it really was … every time[an Afghan witness said] something,if it happens to be right,that’s because someone told[the witness] to say it,not because[they] were there.”
Masters was present in court on Wednesday.
Owens also argued that there were three corroborating witnesses,including a soldier dubbed Person 4,who attested that Roberts-Smith had,a finding that should not be overturned by the court.
“In terms of the kick itself,we emphasise there is corroborating evidence from Person 4 on the one hand and two of the Afghan witnesses,Mohammed Hanifa and Shahzada[Fatih],” Owens argued.
“They all give fundamentally consistent accounts of Ali Jan being kicked off the cliff.”
Owens labelled the sum total of the evidence “highly probative”.
Besanko found Roberts-Smith killed Jan,who was unarmed and defenceless,by kicking him off a cliff and instructing the soldiers under his command to shoot him.
Roberts-Smith disputes Besanko’s finding.
Besanko’s findings included that Roberts-Smith was involved in three murders,as alleged in a series of articles in 2018,as well as a fourth murder that did not appear in the reports but was part of the newspapers’ defence in court.
The appeal is expected to run for 10 days and does not involve hearing from witnesses afresh.
Owens indicated that most of his remaining argument would take place in a closed court on Thursday as the hearings continue.