War veteran Ben Roberts-Smith is back in a Sydney court, as an appeal over his landmark defamation loss gets underway.
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00:00 Last year when Justice Anthony Bissanko dismissed his long-running civil case, the judge said
00:06 he was satisfied that allegations of four murders in Afghanistan and of bullying were
00:11 substantially true after applying the civil standards.
00:14 Now those were allegations that were contained in Nines defense case because Nines was relying
00:19 on a defense of truth.
00:21 In his appeal documents, Mr. Robert Smith's legal team has now asked the appeal court
00:27 to overturn the loss and in lieu of it, enter a judgment in his favor.
00:32 So to do that, what they're going to be trying to do is persuade a panel of three appeal
00:36 judges that Justice Bissanko made errors of law throughout his 730-page judgment.
00:43 Now much of the evidence in this case, if people will remember, came from former or
00:48 current SAS operators, former colleagues of Ben Robert Smith, and many of them gave contradictory
00:53 accounts of key missions where certain allegations were said to have unfolded.
00:58 So this is really a technical fight and a revisiting of the existing evidence in the
01:03 context of deciding whether or not there were errors of law in Justice Bissanko's judgment.
01:08 And what are some of the arguments the court has heard so far, Jamie?
01:14 Well Ben Robert Smith's legal team is being led by the prominent Sydney Silk Brett Walker
01:18 SC.
01:19 He's a relatively new face to these proceedings and he's made some opening remarks this morning
01:24 about this being a civil case which involved some very serious allegations.
01:29 Now there's a principle known as the Brigginshaw principle that comes into play in these types
01:33 of situations and that principle suggests that a court should proceed cautiously where
01:39 there are serious allegations being made in the context of a civil case.
01:43 Brett Walker has told the appeal panel that the gravity of consequence in this case was
01:48 very serious.
01:50 So part of the argument that he is making about why there were, what he says, errors
01:54 of law in the judgment is that Justice Bissanko, according to Brett Walker, didn't take into
01:59 account Ben Robert Smith's presumption of innocence and also adequately explain how
02:05 these kind of things were weighed up in his very lengthy judgment and also how it might
02:10 have affected the original judge's view of the evidence.
02:14 Brett Walker is also going to attempt to show that the evidence in the trial itself fell
02:19 short of what he's described as the level of cogency required to support the kind of
02:24 very serious allegations that were being made.
02:26 So even from what we've heard so far, Ros, we can tell that this is going to be a very
02:30 technical hearing and it's expected to last for about 10 days.
02:34 [BLANK_AUDIO]