On 16 May 2025, the Full Court of the Federal Court of Australia unanimously dismissed appeals brought by Ben Roberts-Smith VC MG against the landmark 2023 trial judgment of Justice Anthony Besanko which concluded that, on the balance of probabilities, Mr Roberts-Smith committed war crimes in Afghanistan. Besanko J found that Mr Roberts-Smith committed or was complicit in the murder of four Afghan men who were under the control of Australian forces at the time of their deaths: two at Kakarak (Whiskey 108) in 2009 and two at Darwan and Chinartu in 2012.
The Full Court (Perram, Katzmann and Kennett JJ) agreed with Besanko J’s conclusions and dismissed all 16 grounds of appeal. Their Honours concluded that each ground of appeal was inconsistent with or unsupported by the evidence at trial, or based on a misstatement or acontextual reading of the evidence. The Full Court also rejected Mr Roberts-Smith’s submission that the Full Court should disregard the many adverse findings about his own credit and that of his witnesses – all of which were unchallenged on appeal – observing that “the Court cannot pretend that the evidence was not given” (J [39]). The Full Court concluded at J [1016]-1017] that:
In a long, careful and clear judgment the primary judge correctly identified and applied the relevant legal principles and paid close attention to the serious nature of the allegations and the standard of proof. His Honour repeatedly reminded himself that the respondents bore the onus of proving the substantial truth of the imputations and of the cogency of the evidence necessary to discharge it.
The burden of providing that his Honour erred on appeal rested with the appellant. The appellant has not discharged that burden. What is more, we are satisfied that his Honour’s conclusions with respect to the substantial truth of the relevant imputations conveyed by the respondents’ articles were correct.
On the same day, the Full Court (Perram, Katzmann and Kennett JJ) also unanimously dismissed an application by Mr Roberts-Smith to re-open the appeal and seek a retrial on the basis of alleged “wilful misconduct” by one of the respondents (Mr Nick McKenzie). The alleged misconduct was said to be that Mr McKenzie “improperly and unlawfully” obtained and retained Mr Roberts-Smith’s privileged information concerning his legal strategy at trial. The Full Court rejected the attack on Mr McKenzie’s credit (J [71]) and concluded that the application failed “at an evidentiary level” because Mr Roberts-Smith failed to establish that Mr McKenzie obtained or retained any of his privileged information or that Mr McKenzie engaged in any misconduct (wilful or otherwise).
Christopher Mitchell appeared for the respondents at trial and on the appeal. At trial, Mr Mitchell was led by Nicholas Owens SC (now the Honourable Justice Owens of the Federal Court of Australia) and Lyndelle Barnett (Level 22 Chambers), and until his retirement in early 2021, the late Sandy Dawson SC of Banco Chambers. On appeal, Mr Mitchell was led by Mr Owens SC and appeared with Hannah Ryan (Eleven Wentworth). They were instructed by Peter Bartlett and Dean Levitan of MinterEllison.
John Sheahan KC, Robert Yezerski SC, Christopher Mitchell and Hannah Ryan appeared for the respondents on the application to reopen the appeal. They were instructed by Beverley Newbold and James Beaton of MinterEllison.
Tom Blackburn SC and Nicholas Bender SC appeared for Peter Bartlett and Dean Levitan of MinterEllison on the application to reopen the appeal.