Ben Roberts-Smith has attacked a judge's findings that he engaged in war crimes as improbable, speculative and based on unreliable witnesses.
The former SAS Corporal has appealed a Federal Court judgment from last month which found he engaged in unlawful conduct while deployed in Afghanistan including being involved in the murder of four unarmed prisoners.
In court documents viewed by AAP, the Victoria Cross recipient claims that Justice Anthony Besanko made a number of critical errors when assessing the evidence regarding whether any war crimes took place or not.
He claims the judge "impermissibly construed" evidence that two prisoners were unlawfully executed at an Afghan compound code-named Whiskey 108.
One of these prisoners was machine gunned by Roberts-Smith who then took his prosthetic leg back to Australia for use as a novelty drinking vessel, Justice Besanko found.
The judge used circular reasoning and cherry-picked the evidence to come to his findings that the news agencies' reports on the war crimes were substantially true to the civil standard of proof, wrote Roberts-Smith in his notice of appeal.
It was also improbable there was a "widespread conspiracy to conceal the truth" about these two unlawful killings and the judge failed to deal with this problem, he wrote.
Other findings that the war veteran kicked a handcuffed prisoner off a cliff at Darwan and then ordered his execution, and that he ordered the killing of another prisoner in Chinartu, are also challenged.
Roberts-Smith is seeking to have the judgment overturned.
He has asked that the three-judge panel of the Full Federal Court then assess his claim for damages or remit the matter back to a single Federal Court judge other than Justice Besanko.
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2023-07-13 04:17:30Z
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