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.
Nicholas Owens,acting forThe Age andThe Sydney Morning Herald,told the Full Court of the Federal Court in Sydney on Thursday that a serving Special Air Service soldier,dubbed Person 14,called by the newspapers to give evidence in the defamation trial,had “stuck to his guns” when accused of lying by Roberts-Smith’s team.
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He was “ultimately vindicated,and powerfully so”,Owens said,because key parts of his account that had been disputed by Roberts-Smith’s camp were found to be supported by objective evidence.
Person 14told the Federal Court defamation trial in 2022 that he witnessed Roberts-Smith ordering the unlawful execution of an unarmed Afghan prisoner in 2012. Under the rules of engagement that bound the SAS,killing unarmed prisoners is a war crime.
According to Person 14’s account,Roberts-Smith directed an interpreter to tell an Afghan Partner Force soldier:“Tell him to shoot him,or I will.”
The direction was relayed,Person 14 told the court,and a subordinate of the Afghan Partner Force soldier shot the man dead. Roberts-Smith has denied giving any such direction.