Besanko found last June that the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was complicit in the murder of four unarmed prisoners while on deployment in Afghanistan between 2009 and 2012. This is lower than the criminal standard of beyond reasonable doubt. Roberts-Smith maintains his innocence.
Walker said “the heart of our case” was that “weight is to be given to the presumption of innocence” and “exactness of proof is expected”. In this case,“you certainly don’t have that”,Walker told the three-judge bench of the evidence marshalled by the newspapers.
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“Of course it is possible in a case such as the present for the court to think there is something in the allegations brought against the person in question,” Walker said.
But he said it was also possible that,notwithstanding any misgivings,“there cannot be a finding with the sufficient degree of cogency required” in light of the gravity of the allegations.
Addressing one alleged murder,Walker said:“There is absolutely no evidence on the basis of which there can or should be amateur sleuthing in this court,I say that with great respect,concerning the scatter or otherwise of blood on things thought to be,or posited to be,held by a person who’s been shot.”
He said there was “simply no evidentiary basis for any of that”.