Sad but simple explanations in veteran's lost appeal

Fear of reprisal drove soldiers serving alongside disgraced veteran Ben Roberts-Smith to look the other way as he committed war crimes, appeal judges have found.

The Federal Court on Tuesday published its reasons for dismissing Roberts-Smith's appeal against the finding he was responsible for the murder of four unarmed civilians in Afghanistan.

The incidents, first reported by journalists Nick McKenzie and Chris Masters in Nine newspapers in 2018, sparked a years-long defamation fight.

Justice Anthony Besanko in 2023 found the claims were substantially true.

The court dismissed the Victoria Cross recipient's appeal against that finding on Friday, adding to a legal bill expected to run into the tens of millions of dollars.

Roberts-Smith argued the judge erred in finding he killed a man with a prosthetic leg and ordered the execution of another, elderly man at a compound called Whiskey 108 in order to "blood the rookie".

The judge failed to give weight to official records suggesting the pair were insurgents legitimately killed while fleeing the compound, or adequately deal with the improbability of a widespread conspiracy to conceal the truth when those records were made, the appeal argued.

Rather than a widespread conspiracy, the court ruled there were other, simpler explanations.

"It can be explained by the more pedestrian, if disappointing, path of widespread individual failure.

"All the soldiers that knew or suspected looked the other way," Justices Nye Perram, Anna Katzmann and Geoffrey Kennett said in the published findings.

Soldiers told the court they feared reprisal.

"I was afraid what would possibly happen to me if I was seen to be the bloke who was speaking out about incidents and not playing the team game," one said.

"The primary judge's conclusion that the soldiers had reasons not to speak out was, as His Honour correctly observed, part of the sad facts of the case," the appeal judges said.

Roberts-Smith bringing the prosthetic leg back to Australia and encouraging other soldiers to drink beer out of it was also found to be substantially true by the primary judge and was among the findings for which appeals were dismissed.

The appeal court found no errors in Justice Besanko's finding that Roberts-Smith had murdered a man named Ali Jan by kicking him off a cliff and ordering another soldier to shoot him.

The September 11, 2012, incident in the Afghanistan village of Darwan was among other reported claims found to be substantially true that conveyed to readers that Roberts-Smith was a war criminal who had disgraced his country and its army.

Similarly, no errors were found in a finding Roberts-Smith ordered another soldier, through an interpreter, to shoot a detained man in nearby Chinartu about a month later.

An argument Justice Besanko failed to apply legal principles for determining truth was also rejected.

The court ruled he had carefully and repeatedly adhered to them, discussing them at length in his reasoning.

The trial judge was "acutely conscious of the seriousness of the findings", resisting some when nonetheless compelling evidence was insufficient, the appeal court said.

He had also rejected evidence from Roberts-Smith and others as false.

Two errors in the primary judge's reasoning were detected but ruled immaterial on the appeal.

The trial ran for 110 days, stretched out over more than a year.

More than a thousand documents were tendered and 44 witnesses were called.

The appeal itself took 10 days, with numerous pre-trial and post-trial hearings, taking the case's total estimated bill north of $30 million.

Roberts-Smith plans to appeal to the High Court.

"I continue to maintain my innocence and deny these egregious, spiteful allegations," he wrote in a statement on Friday.

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