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Ben Roberts-Smith Accuses Judge Of “Cherry-Picking” Evidence

War veteran Ben Roberts-Smith, in his appeal following a significant defamation loss against three newspapers, has criticised a judge for “cherry-picking” evidence.

The Victoria Cross recipient sued The Sydney Morning Herald, The Age, and The Canberra Times in the Federal Court over several 2018 stories, denying all wrongdoing. 

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In a recent ruling, Justice Anthony Besanko found that allegations of four unlawful killings in Afghanistan and bullying were proven substantially true, applying the civil standard of proof.

He also found that the newspapers made out the defence of contextual truth for the remainder of the untrue imputations.

Mr Roberts-Smith’s legal team filed a notice of intention to appeal with the Federal Court on Tuesday, and his lawyer has laid the groundwork for how they will challenge findings today.

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This appeal aims to identify any errors in Justice Besanko’s factual findings. It is expected to cost approximately $1 million in addition to the $25 million already expended on legal fees during the case.

In the notice of appeal, Mr Roberts-Smith’s legal representatives stated that he “appeals from the whole of the judgement”.

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“The primary judge added to and cherry-picked the evidence of a witness whose evidence he otherwise found to be reliable without adequately explaining the basis for doing so.” the appeal states.

A SAS witness known in court as Person 41 gave evidence about the execution of an Afghan man in a courtyard by another soldier, Person 4, under the direction of Mr Roberts-Smith.

The judge accepted Person 41’s evidence and described him as “independent”. However, Mr Robert-Smith’s lawyers say this was an error made by Justice Besanki by “impermissibly construing” the evidence. 

Mr Roberts-Smith was accused of kicking the man off a small cliff before another soldier executed him in a dry creek bed.

The appeal documents also challenge this finding, stating that “significant weight” was placed on the evidence of three Afghan civilians.

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