Ben Roberts-Smith to call major witness to shoot down war crime allegation

He’s accused of killing a farmer who Ben Roberts-Smith allegedly kicked off a cliff — now one of the most anticipated SAS witnesses in the high profile defamation case will finally tell his story.

Ben Roberts-Smith will call his most highly anticipated witness in the defamation lawsuit against Nine newspapers on Tuesday — an elite SAS soldier accused of an alleged war crime killing that shocked Australia.

Mr Roberts-Smith is suing the newspapers after they published articles claiming he killed unarmed, detained Afghans while deployed with the SAS.

The Victoria Cross recipient denies the allegation and has called SAS witnesses over the last month to bolster his version of events — including that he never killed anyone outside the lawful rules of engagement.

Since the legal saga began in mid-2018 one allegation has loomed above the others; the killing of an Afghan on a riverbank, at the bottom of a cliff, a decade ago.

The alleged gunman, an SAS soldier known as Person 11, will walk into the Federal Court on Tuesday where he is expected to deny the Afghan was shot dead in circumstances amounting to a war crime murder.

Mr Roberts-Smith will call an SAS soldier known only as Person 11 who could provide crucial evidence about an alleged war crime.

The evidence will be absolutely vital for Mr Roberts-Smith, who last year told the court the Afghan was shot dead because he was a Taliban scout.

It was at the end of the September 2012 raid, Mr Roberts-Smith told the court, that Person 11 opened fire into a cornfield in the village of Darwan.

Mr Roberts-Smith said he rushed to help and also fired at the person in the field, who was already falling to the ground.

He told the court the SAS found an ICOM radio, used by Taliban “spotters”, on the body.

Nine’s story is very different.

The newspapers claim Mr Roberts-Smith and a small band of Australian soldiers had rounded up unarmed males in Darwan and led one to the edge of a cliff.

It’s alleged the farmer, Ali Jan, was handcuffed and kneeling when Mr Roberts-Smith kicked him in the chest, sending him tumbling down the rocky hill into a dry creek bed below.

Another SAS soldier, known as Person 4, has told the court he was in shock as he saw Mr Jan’s head hit a rock as he fell, “exploding” his teeth out of his head.

Person 4 said the other Australians dragged Mr Jan to a cornfield on the opposite side of the riverbed where Mr Roberts-Smith spoke to Person 11.

Ben Roberts-Smith VC lays a wreath during the launch of Legacy Week at the Sydney Cenotaph in 2011. Picture: Dean Lewins

“A number of shots rang out … Two to three rounds,” Person 4 told the court

Person 4 said he turned back around and saw Person 11 with his M4 raised, in a firing position, and Mr Roberts-Smith standing near the tree.

Person 4 claimed he saw a radio on the body of Ali Jan but believed it was planted on the body.

Mr Roberts-Smith has been both accused and defended by former squadmates in the defamation trial against Nine newspapers.

“(Nine) alleges that the shooting of Ali Jan was the result of an understanding or arrangement, amounting to an agreement between (Mr Roberts-Smith) and Person 11 to ensure that Ali Jan was dead following the cliff kick,” a judge said, summarising Nine’s allegation.

Mr Roberts-Smith denies those claims.

“There was no kick … I don’t recall seeing a cliff even … There was no PUC and no one was dragged across the creek bed,” Mr Roberts-Smith said.

Nine’s barrister, Nicholas Owens SC, questioned Mr Roberts-Smith by showing him a photograph of the dead man that showed his arms covered in blood — except for a stripe near his wrists.

“Do you agree (the clean skin) is consistent with him wearing flexicuffs on his wrists when he was bleeding?” Mr Owens asked.

“No,” Mr Roberts-Smith replied, exhaling and shaking his head.

Person 11 is expected to be asked about the events of Darwan and the circumstances of the Afghan’s death.

He could also be asked about his deteriorated relationship with Person 4.

Person 4 told the court he was the best man at Person 11’s wedding but the two soldiers haven’t spoken in years since he accused Person 11 of murdering the shepherd.

The villagers of Darwan claim Ali Jan was “martyred” by the Australians.

Darwan villager Shahzada Aka told the court last year he watched a tall soldier kick Mr Jan, his brother-in-law, down the incline.

“From here he hit him,” Mr Aka told the court, pointing to pictures of Darwan.

“(The soldier) came down to the river but because of this berry tree I could not see him anymore.”

Mr Roberts-Smith maintains Nine’s “centrepiece” allegation is wrong.

“I think it’s terrible every time I read that or hear it, I can’t believe it’s being written,” Mr Roberts-Smith said of the allegation.

“It feels like you‘re in a bloody nightmare. Every time they write it I wonder; how am I in this position?”

Roberts-Smith’s first defence witness was a SAS patrol commander, known only as Person 5, who first challenged the war stories that have shocked Australia on Tuesday.

Person 5 was accused of “blooding a rookie” soldier by ordering him to kill during a high profile mission on Easter Sunday in 2009.