Three judges are set to hear wide-ranging arguments by Ben Roberts-Smith’s lawyers as to why his defamation loss over war crimes reports should be overturned.
A 10-day appeal hearing in the Full Court of the Federal Court is due to open on Monday as the now disgraced war veteran attempts once more to rebuild his reputation.
The 45-year-old is challenging findings of a Federal Court judge in June that he was complicit in and responsible for the unlawful murder of four unarmed prisoners in Afghanistan.
This included kicking a handcuffed prisoner off a cliff and ordering him executed, and separately machine gunning a man in the back and taking his prosthetic leg back to Australia to use as a beer-drinking vessel.
In his decision, Justice Anthony Besanko also found Mr Roberts-Smith bullied fellow soldiers to prevent them speaking out about his actions, threatened witnesses and hired private investigators to track them.
The 2600-paragraph judgment was a comprehensive loss for the former SAS corporal in his defamation case over 2018 reports in Nine-owned papers The Age and The Sydney Morning Herald plus The Canberra Times.
In his Full Court appeal, which is being heard by Justices Nye Perram, Anna Katzmann and Geoffrey Kennett, Mr Roberts-Smith will argue that any claims of war crimes are improbable and based on unreliable evidence.
The 10-day hearing will be conducted through a combination of open court proceedings and closed court hearings where evidence containing national security secrets will be pored over.
If the legal challenge is unsuccessful, Mr Roberts-Smith and his financiers at the Seven Network including billionaire Kerry Stokes will be on the hook for tens of millions of dollars in legal costs.
In November 2020, a report into alleged war crimes by special forces in Afghanistan was released finding credible evidence 39 civilians and prisoners were unlawfully killed by Australian troops while two others were subject to cruelty from 2007 to 2013.
Two years later, more than 40 alleged offences were under investigation.
Mr Roberts-Smith has not been charged.
