Evidence that Ben Roberts-Smith engaged in war crimes in Afghanistan has been criticised as inconsistent, incomplete, speculative and erroneous.

The war veteran’s barrister Bret Walker SC has canvassed a wide range of problems with evidence purporting to show Mr Roberts-Smith kicked handcuffed prisoner Ali Jan off a small cliff before ordering his execution.

In June, Justice Anthony Besanko found media reports that this occurred in a cornfield near the Afghan village of Darwan in September 2012 were substantially true.

The 2600-paragraph judgment found the 45-year-old engaged in or was complicit in the unlawful killings of four unarmed prisoners while deployed in Afghanistan.

The ex-SAS corporal has denied any wrongdoing and is in the middle of a 10-day appeal seeking to overturn his devastating defamation loss against Nine and The Canberra Times over 2018 reports on the war crimes.

In his third day of submissions on Wednesday, Mr Walker drew the appeals court’s attention to a number of claimed inconsistencies in evidence that the kick and the execution occurred.

Those included that an ICOM radio device had been planted on Mr Jan’s body to make it seem like a legitimate kill.

There was a question over when the first complaints had been made regarding the claimed “kick” of a prisoner off a cliff, with Mr Walker saying the more likely scenario was this happened years after the alleged event.

The court heard that no reference to the kick was made by a military witness known as Person 7 until 2018, when he met with Nine investigative journalist Nick McKenzie.

“The longer the time between the alleged witnessing and the first report … the more reason there is to scrutinise carefully the whole of the evidence,” Mr Walker said.

Other inconsistencies included whether anyone else had been holding Mr Jan before the claimed kick, how many Australian soldiers were present in the Darwan compound and whether interpreters on the ground were armed and threatened prisoners with pistols.

Evidence called from Afghan civilians present during the Darwan raid was riddled with uncertainty, Mr Walker said.

One of these witnesses, Mohammed Hanifa, said Mr Roberts-Smith – who he referred to as the “tall soldier” – was not present when Mr Jan was shot.

This flew in the face of other evidence by a soldier known as Person 4, who claimed to have seen the Victoria Cross recipient pull the trigger, the court heard.

“That inconsistency, which is pretty considerable with respect to the seriousness of the allegation against my client, is simply not resolved by (Justice Besanko),” Mr Walker said.

The hearing continues.

This post was originally published on Michael West.