Ben Roberts-Smith trial evidence finishes with SAS commander

The marathon trial of Ben Roberts-Smith has heard the final piece of evidence from an SAS commander whose troops allegedly carried out war crimes.

A top ranking SAS officer has delivered the final word of evidence in Ben Roberts-Smith’s defamation trial after being questioned whether Mr Roberts-Smith and two more soldiers could have secretly carried out war crime executions under his nose.

The still-serving commander, known by his codename Person 81, was quizzed by barristers for both Nine newspapers and Mr Roberts-Smith on Thursday morning about one of the most infamous allegations in the marathon defamation trial.

Mr Roberts-Smith is suing Nine newspapers after they accused him of six war crime executions while deployed with the SAS in Afghanistan.

The Victoria Cross recipient denies every claim including two alleged killings that took place in a Taliban base known as Whiskey 108 in April 2009.

Nine claims the SAS were securing the Whiskey 108 compound when they discovered two men hiding in a subterranean tunnel and detained them.

Drone imagery of the compound known as Whiskey 108 which was raided by SAS soldiers including Ben Roberts-Smith in 2009. Picture: Federal Court

The newspapers claim Mr Roberts-Smith marched one of the Persons Under Confinement (PUCs) outside the compound and killed the Afghan, who had a fake leg, with a machine gun.

They further claim Mr Roberts-Smith watched as his patrol commander, known as Person 5, ordered the troop’s “rookie”, Person 4, to execute the second elderly detained Afghan.

The tunnel beneath Whiskey 108 is a fiercely contested element of the case, particularly whether Afghan men were found inside. Picture: Federal Court of Australia

Mr Roberts-Smith and Person 5 have both steadfastly denied the claims of war crime murder while Person 4 refused to testify about Whiskey 108 on the grounds of self-incrimination earlier this year.

Person 81 was running the SAS operation at Whiskey 108 and was shown a combat report which detailed nine enemies were killed in action at the Taliban base.

Nine put their allegation squarely to Person 81 – that three of his soldiers had carried out war crime executions during the mission and then lied to him.

“Our case is the old man and the man with the prosthetic leg were found in the tunnel, were PUC’d and then murdered by one or more of Person 4, Person 5 and Mr Roberts-Smith without your knowledge or authorisation,” Nine’s barrister Nicholas Owens SC said.

Drunken parties at the SAS bar known as The Fat Ladies Arms in Afghanistan included soldiers dressed in offensive costumes, partially undressed and drinking from a dead Afghan's prosthetic leg. Picture: The Age

“From my recollection of events, I couldn’t speculate,” Person 81 said.

Person 81 began to tell the court he had “read reports” about the allegations but couldn’t speak about them.

The court has previously heard Person 81 reference hearing about the alleged tunnel killings at the highly secretive war crime investigation known as the Brereton Inquiry.

The after combat report says two of the enemies killed in action at Whiskey 108 were “squirters” – suspected insurgents who try to flee the battle.

Nine’s case is that Person 81 was falsely told by his men that the two executed Afghans were squirters.

SAS Corporal Ben Roberts-Smith VC., MG., (left of centre) with the Australian Special Operations Task Group prepares to deploy to the Shah Wali Kot Offensive, Afghanistan, in June 2010. Picture: Department of Defence

Person 81 said he was told the men were squirters following the mission.

The commander told the court he was unable to say whether or not the dead men were executed as he only heard of the circumstances after the fighting had stopped.

“You are unable to say, one way or another, whether those men were PUC‘d at the time of their death?” Mr Owens asked.

“I wouldn’t know,” Person 81 responded.

“And you’re unable to say one way or another whether the old man was executed by Person 4 encouraged by Person 4 and Person 5?” the barrister continued.

“I couldn’t say, no.”

“And you’re unable to say whether the man with the prosthetic leg was executed by Mr Roberts-Smith?” Mr Owens asked.

“I couldn’t say.”

The final question to Person 81 came from Mr Roberts-Smith’s barrister, Arthur Moses SC, attempting to counter Nine’s case.

“Did you observe any conduct by Person 4, Person 5 or Mr Roberts-Smith that caused you to have a suspicion they PUC’d or murdered anybody?” Mr Moses asked.

“No, I did not,” Person 81 responded.

The end of Person 81’s evidence marks the end of months of testimony in what has come to be dubbed the defamation trial of the century.

Mr Roberts-Smith launched the lawsuit in 2018 following the damaging articles in Nine’s newspapers.

Since then the case has been delayed by the Covid-19 pandemic and sprawled to encompass 40 witnesses.

Mr Roberts-Smith with the SAS in 2010, the war crime accusations and defamation trial have split the elite fighting force. Picture: Department of Defence

Many were Mr Roberts-Smith’s former SAS comrades, some were called on by Nine to accuse him of war crimes, bullying and threats that resulted in hundreds of damaging headlines.

Then Mr Roberts-Smith began calling his own allies from the elite fighting squad to deny the war crime allegations and denounce the SAS soldiers who went to the media.

Other witnesses included Mr Roberts-Smith’s ex wife, Emma Roberts, and his former alleged mistress who claimed he had abused her.

Three Afghan villagers, the family of a man allegedly kicked off a cliff by Mr Roberts-Smith, also told the court the SAS “martyred” their relative.

Mr Roberts-Smith denied all claims and said the case was the result of a “tall poppy” syndrome within the SAS with bitter soldiers trying to tear him down because he was given the top military honour – the Victoria Cross – for risking his life to save his mates.

Mr Roberts-Smith’s barrister, Arthur Moses SC, called his final witness in the long-running defamation trial in the Federal Court this week. Picture: Dylan Coker

His barristers will officially close his case tomorrow after a debate about documents.

Closing submissions will be made to Justice Anthony Besanko in July before the judge retires to consider his verdict.

It’s unknown how long until Justice Besanko hands down his decision.

Until then all eyes will turn to the highly secretive Office of the Special Investigator, which was set up in the wake of the Brereton Inquiry to dig into the war crime allegations.

So far it has made no arrests and laid no charges.

Originally published as Ben Roberts-Smith trial evidence finishes with SAS commander