Nine newspapers took the most aggressive blow by closing the lawsuit against Ben Roberts-Smith, alleging that the elite soldier showed “guilt consciousness” when he and four other soldiers allegedly “colluded” to lie about being charged with a war crime.
A defamation lawsuit initiated by Mr Roberts-Smith in 2018 is now in its final stages in the Federal Court of Sydney.
Mr. Roberts-Smith alleges that nine newspapers falsely portrayed him as a war criminal in articles claiming that he killed or ordered the execution of six unarmed Afghans while serving with the SAS.
Ninth insists that the articles are correct and the recipient of the Victoria Cross is the killer, while Mr. Roberts-Smith denies all claims.
His legal team has made an emotional appeal to Judge Anthony Besanco to restore the good name of a war hero and a man affected by “heartbreaking” false accusations and to resist claims that it was a war crime trial by proxy or an attack on the free press.
The newspaper’s lawyer, Nicholas Owens, S.S., set a different tone in his closing speech, focusing in detail on the controversy and legal principles raised in the testimony of dozens of SAS witnesses.
Then, on Wednesday, he changed gear.
Mr. Owens accused Mr. Roberts-Smith and his closest allies of conspiring to mislead the court with false evidence regarding one of Nine’s murder charges.
“Mr. Roberts-Smith was either the architect or the conscious beneficiary of this dishonest collusion,” Mr. Owens said.
“He was the one who would benefit from this, and ultimately, he was responsible for the decision to call these witnesses to get this testimony from them.”
Mr. Owens told the court that Mr. Roberts-Smith’s behavior was a sign that the elite soldier knew he was guilty.
“All this behavior from which your honor can infer consciousness of guilt,” he said.
The conspiracy, or “lodge,” Mr. Owens alleged, involved Mr. Roberts-Smith and four of his witnesses, all of whom told the court that one of Nine’s war crime charges simply could not have been due to a dog that had been shot.
Nine alleged Roberts-Smiths were interrogating captured Afghans in the village of Chenartu in late 2012 when another SAS soldier kicked the wall and discovered a cache of weapons.
Mr. Roberts-Smith, according to Nine, ordered the commander of an Afghan partner force to kill one of the captives.
According to Nine, an Afghan commander known as Man 12 ordered one of his men to execute a captive.
Mr. Roberts-Smith completely denies this claim.
He was one of five soldiers present in Chenartu who told the court in documents that Man 12 was not even in Chenartu because he shot a dog and the bullet ricocheted before wounding an Australian soldier a few weeks earlier.
The testimony of the five men would have destroyed Nine’s murder charge, but they were incorrect, as the court heard.
Photographs and other documents only shown in closed court are said to prove that the dog was shot by another Afghan soldier and Person 12 was still employed by the SAS at the time of the Chenartu raid.
The court closure continues.
Originally published as “Guilty Consciousness”: Nine’s hitting Ben Roberts-Smith