Ben Roberts-Smith hearing clouded by ‘fog of war’, SAS commander tells court

An SAS patrol commander has insisted “the fog of war is real” and in doing so has highlighted the problems facing the judge in the Ben Roberts-Smith defamation case.

A SAS patrol commander has insisted “the fog of war is real” and in doing so has highlighted the problems facing the judge in the Ben Roberts-Smith defamation case.

The patrol commander, identified as Person 5, was the first witness called by Mr Roberts-Smith’s lawyers and has given a very different version of events to those previously presented by witnesses for Nine newspapers.

“The fog of war … it is real, it happens,” Person 5 told the Federal Court this week. “People see things from different angles.”

He said he drafted a report after every operation and every member of the patrol read, contributed and amended it before it was finally signed off.

“Something I see starts to make sense when they explain something they saw from a different angle,” he said.

Ben Roberts-Smith arrives at the Supreme Court on April 22. Pic: Simon Bullard

Under cross examination by Nine’s lawyer Nicholas Owens SC on Friday, the recollection of an operation to take out a high value Taliban target nicknamed Objective Depth Charger in 2009 was put to the fog of war test.

Mr Owens put to the commander that other witnesses had said another soldier known as Person 6 had been first through the gate and Objective Depth Charger had been killed by soldiers known as Person 18 and Person 14.

Former SAS soldier Ben Roberts-Smith pictured on tour in Afghanistan. Picture: Department of Defence

“No that’s not correct,” said Person 5.

“Person 6 opened the gate. I was first out of the gate. Person 4 was second.”

Objective Depth Charger was on a motorbike.

“I was shooting at the guy on the back of the motorbike who was his bodyguard,” Person 5 said.

He said Person 4 “was the person who fired his weapon first and killed” Objective Depth Charger.

One of the challenges for Justice Anthony Besanko will be assessing the competing versions of events which play a crucial part in Mr Roberts-Smith’s case that Nine newspapers allegations of war crimes are false.

Channel 9 lawyers who quizzed Person 5 today arrive at the Supreme Court. Pic: Simon Bullard

Days after Objective Depth Charger was killed, Nine alleges Mr Roberts-Smith stood by as the commander ordered new recruit Person 4 kill a captured Afghan in order to “blood the rookie.”

In arguing that the allegations are true, Mr Owens has repeatedly put to Person 5 that one of two Afghans pulled from a tunnel in a compound known as Whiskey 108 was shot by Person 4 on his orders to have his first kill.

“That’s not correct,” Person 5 said.

He said that the tunnel was empty and repeated that he had not heard the term “blood the rookie” until it was published in 2018.

He argued that Person 4 had killed Objective Depth Charger days before. “How can you blood someone who has already killed someone?” he asked.

Person 5 denied repeatedly that he had colluded with other witnesses over evidence they would give at the hearing.

The hearing continues.