Besanko found the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was involved in the murders while on deployment in Afghanistan between 2009 and 2012. This is lower than the criminal standard of beyond reasonable doubt.
The former Special Air Service corporal’s legal team,led by high-profile silk Bret Walker,SC,has argued Besanko did not have sufficiently cogent evidence before him to justify making such grave findings against their client when he was entitled to the presumption of innocence.
But Nicholas Owens,SC,acting for the newspapers,has urged the Full Court of the Federal Court not to overturn Besanko’s decision. In submissions on Monday,Owens focused on the evidence marshalled by the newspapers in relation to two of the alleged murders,which were said to have occurred on Easter Sunday 2009 during a mission to a compound dubbed Whiskey 108.
There is no dispute the two Afghan men were killed during this mission,but Roberts-Smith gave evidence during the trial that they were enemy combatants killed lawfully in action by him and a second soldier. Roberts-Smith told the court the two men were armed with a machine-gun and a rifle respectively,which were shown in a photo tendered in court.
But a serving SAS soldier dubbed Person 18,who was called by the newspapers to give evidence at the trial,told the court that he found those specific guns among a weapons cache in a hay store at Whiskey 108. Besanko accepted Person 18’s account on this point and rejected Roberts-Smith’s evidence.
The newspapers alleged the two Afghan men killed emerged unarmed from a tunnel at Whiskey 108 and were taken prisoner before they were executed by Roberts-Smith and a “rookie” soldier acting on his instruction. The mastheads called seven current and former SAS soldiers to give evidence in support of that account. But Roberts-Smith andfour of his SAS comrades told the court there were no men in the tunnel.