D-Day arrives for Ben Roberts-Smith following appeal in blockbuster lawsuit

Ben Roberts-Smith will learn on Friday whether he has been successful in overturning his high-profile defamation suit loss against Nine Newspapers.

Mr Roberts-Smith lost his multimillion dollar lawsuit against the Sydney Morning Herald, The Age and Canberra Times over a series of stories making war crime allegations relating to his deployment in Afghanistan from 2009 to 2012.

Justice Anthony Besanko dismissed the lawsuit and in a landmark judgment found that Mr Roberts-Smith was involved in the unlawful killings of four detainees while on deployment in Afghanistan.

The findings were made on the balance of probabilities, which is less than the criminal standard of beyond a reasonable doubt.

Mr Roberts-Smith has maintained his innocence and appealed to the full bench of the Federal Court during a hearing in February last year.

During a hearing, the Victoria Cross recipient’s barrister Bret Walker SC argued that the evidence did not support Nine’s truth defence.

He also argued that Justice Besanko failed to take into consideration the “Briginshaw principle” which dictates that serious allegations should be treated cautiously when making grave findings.

“(Mr Roberts-Smith) was and remains entitled to the presumption of innocence. It is only within … the criminal justice system, that a finding of guilt in relation to war crimes can be made,” his lawyers argued in their submissions to the court.

The Full Court of the Federal Court will hand down its findings on the appeal on Friday morning.

The court will also deliver its decision on an application by Mr Robert-Smith’s legal team to reopen his appeal.

The Victoria Cross recipient claimed he suffered a miscarriage of justice after recordings surfaced of reporter Nick McKenzie allegedly admitting to accessing information relating to the veteran’s legal strategy before the trial.

Mr Roberts-Smith argued his ex-wife had access to his email account and that she and a friend passed his privileged messages on to Mr McKenzie.

His lawyers have argued that the admission of the recording could have made a difference to the outcome of the trial.