Ben Roberts-Smith’s barrister Bret Walker SC is arguing in the Federal Court of Australia that the 3 judges hearing the appeal should ignore Roberts-Smith’s perjury, witness collusion, intimidation of witnesses, destruction of evidence etc and the judges should focus on the SMH’s witnesses’ because of “discrepancies and differences” in their evidence.

Bret Walker SC should win an Academy Award for having the audacity to run such an argument in court while keeping a straight face.

It’s a failed strategy that Kerry Stokes, who is paying Roberts-Smith’s legal fees, used in the infamous C7 case he lost in 2009 and Kerry Stokes would know that Roberts-Smith’s chances of winning the appeal are Buckley’s or none.

But let’s look at the Ben Roberts-Smith appeal first and then look the similarities with Kerry Stokes C7 case.

Bret Walker SC stated on Monday (5/2/24) that at the original defamation trial before Justice Anthony Besanko they had 2 main submissions. Firstly, the judge should believe Ben Roberts-Smith’s and his witnesses’ version of events in Afghanistan instead of the witnesses called by Fairfax Media (Nine Entertainment) who accused Ben Roberts-Smith of war crimes.

Secondly, if the judge didn’t believe Ben Roberts-Smith’s and his witnesses’ version of events then the judge should still find in Roberts-Smith’s favour because of the “discrepancies and differences” in the evidence given by Fairfax Media’s witnesses.

Justice Anthony Besanko found on numerous key matters that Ben Roberts-Smith’s and his witnesses version of events were false and that Fairfax Media’s witnesses evidence was true. Justice Besanko found that Roberts-Smith was a war criminal and he was complicit in the murder of four unarmed prisoners. Besanko also found Roberts-Smith had bullied a fellow soldier.

Bret Walker SC said in the appeal they had abandoned their key submission from the trial before Justice Besanko and that they are not challenging the trial judge’s findings that Roberts-Smith and his witnesses gave false evidence which is the polite way of saying they committed perjury.

Walker SC told the court on Monday that their appeal argument is submission 2 from the defamation trial which is Fairfax Media didn’t make out their case (the truth defence) as some of their witnesses gave contradictory evidence and Justice Besanko erred in law by not making that finding. (Click here to read the Notice of Appeal)

On Monday the 5th of February 2024 I published the below message on Twitter. (Click here to see the tweet on Twitter)

Big problems for Ben Roberts-Smith

While Roberts-Smith’s barrister Brett Walker SC said they are not challenging the fact that the trial judge Justice Besanko found that Roberts-Smith and his witnesses gave false evidence, and they are focusing on the “discrepancies and differences” in Fairfax Media’s evidence, the problem is they are ignoring the elephant in the room.

Walker SC has said nothing about all the other corrupt conduct committed by Roberts-Smith before and during the defamation trial such as witness collusion, intimidation of witnesses, destruction of evidence etc.

In Justice Besanko’s judgment it says as a heading above paragraph 2228:

Section 12 — Intimidation of Witnesses, Collusion and Contamination of Witnesses, Concealment of Relevant Evidence and Material, Lies and the Alleged Separation of the Applicant and Ms Roberts

2228. This Section addresses conduct by the applicant which is said by the respondents to be relevant to his honesty and reliability as a witness and, in some cases, the conduct is said to reveal a consciousness of guilt on the part of the applicant. Conduct showing a consciousness of guilt can be variously described as an implied admission or circumstantial evidence permitting an adverse inference to be drawn. In Kuhl v Zurich Financial Services, Heydon, Crennan and Bell JJ said (at [64]):

… Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. …

Justice Besanko did not make all the findings that the respondents (Fairfax Media) wanted against Ben Roberts-Smith’s credibility, but he did make enough that destroys Roberts-Smith’s credibility. Two examples are below:

Ben Roberts-Smith bought burner phones (unregistered pre-paid phones) so he could avoid the IGADF Inquiry (War Crimes Inquiry) and the AFP from bugging his phones. Justice Besanko said at paragraph 2440:

2440. The applicant knew in May 2018 that he was one of the subjects of the IGADF Inquiry. He knew by 20 June 2018, that there had been a referral to the AFP which had the effect that Mr Keelty could no longer speak to him. The question is whether I should reject his evidence that it was no part of his purpose in purchasing pre-paid telephones and using encrypted apps to avoid detection by law enforcement authorities. I do not accept the applicant’s evidence. I consider that he wanted to avoid any interception of his telephone conversations whether it be an interception by the media, the IGADF Inquiry or the AFP.

Ben Roberts-Smith hid evidence relevant to the defamation case from Fairfax Media. Justice Besanko said at paragraph 2541:

2541. I do not accept the applicant’s case that the failure to discover the USBs was due to inadvertence. The applicant lied about not burying the USBs in the backyard of the matrimonial home. He must have known they were relevant. He had sworn three affidavits of discovery and each time has not discovered them. I find that he decided not to discover them.

Bret Walker SC has in effect told the Full Court of the Federal Court of Australia, which is their appeals court, to ignore Ben Roberts-Smith’s evidence from the defamation trial and focus on Fairfax Media’s evidence.

But Justice Anna Katzmann, one of the appeals judges, said words to the effect that she found it hard to understand how she could decide the appeal if she had to ignore a big chunk of the evidence from the original trial which would be Ben Roberts-Smith’s evidence and the evidence of his witnesses.

Bret Walker SC is trying to sucker punch the 3 Appeal judges Justice Anna Katzmann, Justice Nye Perram and Justice Geoffrey Kennett and if they buy Walker’s lies and deception it will scandalise the court.

Ben Roberts-Smith’s appeal is scheduled to last 10 days and when it is Fairfax Media’s barrister Nicholas Owens, SC turn to address the court I am sure that Ben Roberts-Smith’s intimidation of witnesses, collusion and contamination of witnesses, concealment of relevant evidence and material and lies will be front and centre of his submissions.

Update: I have just published the below video titled “War criminal Ben Roberts-Smith’s implied guilt is the undoing of his defamation appeal”

Kerry Stokes and in the infamous C7 case that cost Channel Seven $200 million

Kerry Stokes is paying Ben Roberts-Smith’s legal fees for the defamation case and Stokes is also running the legal strategy. I published an article on the 12th of December 2023 titled “Kerry Stokes, in effect admits to fraud, by agreeing to personally pay over $16 million in the Ben Roberts-Smith case” which starts off:

Kerry Stokes, to avoid handing over incriminating emails and messages, has been forced to agree to pay over $16 million to Nine Entertainment for the Ben Roberts-Smith defamation case. (Click here to read more)

Back in 2006 to 2009 Kerry Stokes wasted an estimated $200 million of Seven’s money in the infamous C7 court case suing over 20 other companies and Stokes lost and Seven had to pay.

Stokes was caught committing perjury where the judge said “Mr Stokes’ evidence on this issue was not only implausible but, I must conclude, deliberately false” and “he gave evidence that he knew was not true” under oath in the matter so he should have been made to pay the $200 million. (See the judgement Seven Network Limited v News Limited [2007] FCA 1062 (27 July 2007) at paragraphs 385 to 398)

Stokes has been illegally using Seven’s money for failed legal cases for years and he is still doing the same to this day.

Kerry Stokes appealed the C7 case, but never appealed the fact that the judge in effect found he was a perjurer and compulsive liar, and lost with the appeal court saying at paragraph 326:

326 The appellants called Mr Stokes who was at the relevant time a major shareholder in Seven Network and Non-executive Chairman of Seven Network between June 1995 and July 1999, and CEO from August 1999 to October 2000. The trial Judge made a number of adverse findings about Mr Stokes’ evidence and about Mr Stokes. Although those findings are not under challenge on this appeal, this Court must have regard to those findings because Mr Stokes’ evidence was critical in relation to Seven’s s 46 case and relevant to Seven’s s 45 case. (Click here to see the 2009 Appeal judgment in the Seven Network Limited v News Limited matter)

Kerry Stokes (C7) and Ben Roberts-Smith (Fairfax Media) are almost identical in that they were witnesses found by the trial judge as not being credible witnesses, appealed their case but did not appeal the credibility finding.

So, just as the appeal judges in the C7 matter found they still had to take the “adverse findings about Mr Stokes’” credibility into account even though C7 hadn’t appealed those findings the appeal court in Ben Roberts-Smith appeal will have to take into account all the adverse findings made against Roberts-Smith even though he hasn’t appealed those findings.

The submission by Bret Walker SC that the appeal judges should ignore Ben Roberts-Smith evidence and the evidence of his witnesses at the defamation trial is shot down by the appeal Court’s judgement in Seven Network Limited v News Limited regarding Kerry Stokes’ perjured evidence.

I would like to see Fairfax Media file Kerry Stokes’ C7 appeal judgement, as per above, as part of their defence and the Federal Court use it as part of their judgement to dismiss Ben Roberts-Smith’s appeal. It would teach Kerry Stokes an expensive lesson.

When people file claims in court and then lie and deceive the court to try and win their case they should have their case thrown out immediately and be given a jail sentence. 

The bottom line is that even if Ben Roberts-Smith wins his appeal his reputation will still be trashed because of the crimes he committed trying to win the defamation case and the appeal won’t change that because his lawyers are not appealing those findings in Justice Besanko’s judgment.

Kerry Stokes and the legal team are playing with Ben Roberts-Smith’s life for their own benefit, but I have no sympathy for Roberts-Smith as it’s his own decisions that have been his undoing.

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