Ben Roberts-Smith denies fresh war crime claims, shown video of ‘cliff execution’ site

Ben Roberts-Smith has been shown the ‘cliff’ he allegedly kicked an unarmed shepherd down and denied fresh details of alleged murders.

Ben Roberts-Smith has denied asking another soldier “are we cool?” after he allegedly executed an unarmed and disabled prisoner hauled from a tunnel beneath a Taliban base.

It came as a court watched video of a man walking down a dusty slope into a creek bed — the so-called “cliff” where Nine claims the Special Air Service veteran allegedly kicked a prisoner.

Mr Roberts-Smith returned to the witness box to face Nine’s barrister just hours after testing negative to Covid-19 on Monday.

Nine’s barrister Nicholas Owens has previously pressed Mr Roberts-Smith over an allegation he kicked a detained shepherd named Ali Jan off a cliff in the village of Darwan in 2012.

Nine claims Mr Roberts-Smith and other troops walked down into the creek bed below the cliff before the badly injured Ali Jan was executed.

Mr Roberts-Smith denied the allegations entirely — saying there wasn’t even a cliff in Darwan.

The Federal Court on Monday watched shaky and blurry video of the Darwan creek bed filmed in 2019.

An Afghan man in black robes is seen walking directly down a dusty incline into the creek bed.

Last week, Mr Roberts-Smith and Mr Owens disagreed about whether the “cliff” existed, with the soldier saying “that’s not a cliff to me” while disputing Nine’s murder allegation.

Ben Roberts-Smith has watched video of the scene at Darwan, where one of the key incidents allegedly occurred.

Mr Roberts-Smith said a one to two metre embankment where he and another soldier had stood and shot dead an insurgent “spotter” was not visible in the video.

He said the terrain had changed substantially since he was there in 2012. Nine’s barrister said it had not.

Mr Owens also questioned Mr Roberts-Smith about a man with a prosthetic leg who was shot dead outside a compound called Whiskey 108 in Afghanistan in 2009.

Mr Roberts-Smith says he spotted the armed man hurrying around the corner of the compound and dropped him with two machine gun bullets before his gun jammed.

Another SAS operator, standing nearby, then shot a second insurgent who rounded the corner, Mr Roberts-Smith has told the court.

But on Monday, Mr Owens put to Mr Roberts-Smith that the two men had been hiding in a tunnel beneath Whiskey 108 and surrendered to the Australian troops.

“There were no men in the tunnel … that is completely false,” Mr Roberts-Smith said.

Ben Roberts-Smith has denied killing two men found in a tunnel in Afghanistan. Picture: AAP Image/Dean Lewins

Mr Owens said Mr Roberts-Smith had knelt one of the detained men down in front of an SAS operator known as Person 4 and said “shoot him”. Mr Owens said the soldier complied, using a suppressor on his rifle.

“There were no men in the tunnel,” Mr Roberts-Smith repeated.

Person 4 is expected to give evidence for Nine. Person 5, the senior SAS operator accused of ordering the execution, will give evidence for Mr Roberts-Smith.

Mr Owens said Mr Roberts-Smith carried or “manhandled” the second man outside the compound, threw him to the ground and shot him with an “extended burst” of his machine gun until it jammed.

The barrister said Mr Roberts-Smith realised another soldier had witnessed the shooting and said words to the effect of “are we cool?”

Mr Roberts-Smith denied that and previously told the court photographs of the body did not show the amount of “trauma” consistent with that many bullets hitting the man.

Mr Owens said Mr Roberts-Smith had taken a bolt action rifle and machine gun, found in a weapons cache in Whiskey 108, and planted it on the bodies of the men to justify their killing.

“You used those (weapons) as a cover story for these two killings,” the barrister said.

“No, that is false,” the soldier replied.

Australian Special Operations Task Group soldiers watch the valley during the Shah Wali Kot Offensive in Afghanistan, June 2010. Picture: Defence Department

Mr Owens claimed Person 5 told Mr Roberts-Smith he may have been caught shooting the unarmed man by a surveillance drone, known as an ISR, flying overhead.

The barrister suggested Mr Roberts-Smith asked how the footage could be stopped in his “panic”.

“That’s false and also doesn’t make sense,” Mr Roberts-Smith said.

Both Nine and Mr Roberts-Smith agree the man shot outside the compound had a prosthetic leg that was taken by the SAS back to the unofficial bar called the Fat Ladies Arms.

Mr Roberts-Smith maintains he never drank from the prosthetic leg but was photographed cheering along as other soldiers took part in the drinking game.

Under questioning from Nine’s barrister, Mr Roberts-Smith agreed he had a few engraved glasses “in a box somewhere” in the shape of the prosthetic leg.

“Everyone in the squadron was given one,” he said.

Nine’s barrister Nicholas Owens. Picture: NCA NewsWire/Dylan Coker

The elite soldier was not in court on Monday morning but his barrister Arthur Moses told the court Mr Roberts-Smith had been contacted by NSW Health on Sunday.

Mr Roberts-Smith was told he visited a venue in the Sydney CBD last week about the time a positive coronavirus case attended and must be tested.

The SAS veteran was tested on Sunday evening, Mr Moses said, and returned a negative result on Monday afternoon.

He was finally cleared to return to court after hours holed up in self-isolation.

Mr Moses asked for the location where Mr Roberts-Smith had been exposed to the infected carrier to remain confidential for security and privacy reasons.

Barrister Arthur Moses told the court the soldier was isolating after visiting a Covid-exposed venue. Picture: NCA NewsWire/Joel Carrett

Mr Roberts-Smith is suing Nine’s newspapers The Age and The Sydney Morning Herald, alleging they defamed him with reports he committed war crimes in Afghanistan and punched a woman in the face. He denies all wrongdoing.

The court was able to deal with administrative subpoena issues on Monday related to one of Nine’s key witnesses.

Mr Moses told the court that private investigator John McLeod was reluctant to appear at the trial.

Last week, Mr Roberts-Smith told the court he hired Mr McLeod to follow a woman he was trying to break up with.

Mr Roberts-Smith said the woman, known as Person 17, had told him she was pregnant but he did not believe her.

The soldier said he paid Mr McLeod to follow Person 17 to an abortion clinic to verify her story.

The court had previously been told there was difficulty contacting Mr McLeod because he would not answer his door at his home in northern NSW.

Justice Anthony Besanko approved a request to nail the court summons to Mr McLeod’s door at the start of the trial.

Originally published as Ben Roberts-Smith denies fresh war crime claims, shown video of ‘cliff execution’ site