Has the evidence put before the judge in the Roberts-Smith case been enough to convince him the media outlets have cleared the high bar of proving a war hero guilty of murder? | DeborahSnow and MWhitbourn
have taken the calculated risk of mounting a truth defence. That means their legal team, headed by Nicholas Owens, SC, had to convince the judge that the war crimes and other wrongdoing alleged by star investigative reporters Nick McKenzie and Chris Masters were, on the balance of probabilities, true.
He also pointed out that if the judge accepted all the evidence from the media outlets as to the five unlawful killings of unarmed prisoners that Nine alleges, this would implicate other soldiers –particularly the SAS witnesses known as Person 4 and Person 11. Nine’s legal team, however, believes the war crimes case it has painstakingly built over the past year is strong enough to withstand the Briginshaw test. “Nothing left on the table,” is how one participant summed up the mood on the media outlets’ side this week.
But Owens, utterly rejecting this, emphasised that many of Nine’s critical witnesses had never had any contact with the journalists. The hearings have taken a heavy toll on some of the soldiers who gave evidence, as demonstrated by the occasionally distressed state of some in the witness box. Moses branded two of Nine’s witnesses as liars and perjurers, and says others are mistaken because of mental health conditions which distorted their memory.
Another evidentiary tussle turned on whether the media outlets should have summoned an Afghan soldier known as Person 12 to give evidence. Person 12 was a senior Afghan officer who is said to have ordered the execution of another unarmed detainee at Chenartu, in Afghanistan, in late 2012, under pressure from Roberts-Smith.Citing a precedent in a case known as Jones v Dunkel, Moses said Besanko should draw an adverse inference against Nine because of its failure to call Person 12.