Witnesses who gave evidence against Ben Roberts-Smith in his defamation case have been described by his barrister as liars, gossips and perjurers.
The Victoria Cross recipient is suing The Age, The Sydney Morning Herald and The Canberra Times over 2018 reports claiming he committed war crimes in Afghanistan including murder, and acts of bullying and domestic violence.
The 43-year-old denies all claims of wrongdoing, while the newspapers’ publisher Nine Entertainment is defending them as true.
In his final address in the Federal Court trial on Friday, his barrister Arthur Moses SC said the truth defence was based on imprecise testimony, contradictory evidence conjecture and speculation.
The evidence in the case had not established any of the grave allegations propounded by the newspapers, he said.
Person Seven testified to having watched the war hero attack an unarmed Afghan prisoner, bully a comrade and threaten to strangle a man.
Person 14 testified to seeing Mr Roberts-Smith ordering Person 12 to shoot an Afghan prisoner “or I will” through an interpreter.
But Mr Moses said the two witnesses were “plain and simple liars and perjurers”.
Person 14 repeatedly lied in his evidence, until his “lie after lie unravelled” when notes were produced of what he told a journalist.
“Person Seven is a man possessed and obsessed with Mr Roberts-Smith’s Victoria Cross, to the point of his partner telling him to stop talking about it on his own admission,” the barrister said.
“His evidence in this case was quite frankly embarrassing.”
He was a gossip who hated Mr Roberts-Smith, he said.
“He would even make Mrs Mangel from Neighbours blush, in respect of his amount of gossiping concerning Mr Roberts-Smith.”
He noted the newspapers had failed to call Person 12 – the Afghan soldier they alleged was ordered by Mr Roberts-Smith to shoot the prisoner – to give evidence.
“Person 12 it would be expected would have first-hand knowledge of the facts alleged by the respondent,” he said.
Because they made the allegations his client was complicit in murder, they bore the onus of calling him.
Person 24 previously said he watched the war veteran open fire on an Afghan prisoner’s back after throwing him to the ground during an April 2009 mission to a compound dubbed Whiskey 108 in Uruzgan province.
“That man is a liar,” Mr Moses said.
He noted prior inconsistent statements given by the witness.
Mr Moses also submitted there was no evidence of a “culture of silence” which the newspapers’ barrister said led to Australian soldiers failing to report war crimes in Afghanistan.
“This is not A Few Good Men,” he said, referring to the military courtroom drama.
The most intimate and personal details of Mr Roberts-Smith’s life were revealed in court, details which his client said were embarrassing.
“Nobody is perfect in their personal life, but it does not make them a murderer.”
Murder and complicity in murder, in the aggravating circumstances of being in active service in Afghanistan, were very serious allegations.
The judge was being asked not only to adjudicate on Mr Roberts-Smith, but also on other persons accused of murder.
“Even though this is a civil case, the very serious nature of the grave allegations levelled against Mr Roberts-Smith compels the court to take into account the consequences or effect of finding the allegations proved,” he said.
While the respondents claimed the case was about money, Mr Moses said it was about vindication.
“They opened big on the first day, made a number of big allegations but they fall flat.”
He will continue his submissions on Monday.
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