Justice Anthony Besanko recuses himself from court decision relating to war crimes investigation into veteran
The judge who dismissed Ben Roberts-Smith’s defamation action will not decide whether criminal investigators probing war crimes allegations against the decorated veteran should have access to sensitive information heard in closed court during the defamation trial.
“An ordinary, right-thinking member of the community would consider that such matters should be the subject of a criminal investigation. That is enough to give rise to apprehended bias.” But Besanko found the newspapers had proven to a civil standard – on the balance of probabilities – that Roberts-Smith was complicit in the murder of four unarmed prisoners in Afghanistan, including kicking a handcuffed prisoner off a cliff before ordering him shot dead.
Roberts-Smith has lodged an appeal against Besanko’s decision in the defamation case, to be heard by the full bench of the federal court in February. Lawyers for Roberts-Smith requested Besanko disqualify himself from making the decision about whether OSI investigators should have access to the documents. They did not argue that the judge was biased, but that he might appear that way to a hypothetical “fair and reasonable observer”, having presided over the defamation trial and delivered judgment against Roberts-Smith.
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