Ben Roberts-Smith’s first witness, SAS patrol commander, to testify today
Ben Roberts-Smith will call the first witness in his defamation trial today - but what do we know about the SAS patrol commander known as Person 5? ‘’
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Ben Roberts-Smith is expected to call the first witness in his defamation trial on Tuesday, almost a year after the Victoria Cross winner himself testified he had been wronged by Nine newspapers’ war crime allegations - here’s what to expect from the coming days.
An SAS patrol commander, known only as Person 5, is expected to be called by Mr Roberts-Smith’s legal team as their first witness to challenge the war stories that have shocked Australia on Tuesday.
What is known, already, is that Person 5 is accused of “blooding a rookie” soldier by ordering him to kill during a high profile mission on Easter Sunday in 2009.
Mr Roberts-Smith launched his lawsuit against Nine newspapers in 2018 after journalists Nick McKenzie and Chris Masters published articles claiming the Victoria Cross recipient had killed unarmed Afghans while deployed with the SAS.
The famed soldier denied the allegations but Nine, mounting a truth defence, insisted they could back their stories up in court and began calling witnesses in February.
Person 5’s evidence could be crucial in establishing what happened during that mission in Afghanistan on Easter Sunday 2009.
Nine claims Person 5 ordered a junior soldier to execute an unarmed, captured Afghan inside a Taliban base known as Whiskey 108.
Mr Roberts-Smith was allegedly present during the killing and did not intervene, Nine claims in its case.
The Victoria Cross recipient vehemently denies their claims and one of Nine’s witnesses have contradicted the newspapers’ allegations.
That witness claimed it was Mr Roberts-Smith who ordered the rookie soldier shoot the Afghan.
Person 5 is expected to deny all wrongdoing in support of Mr Roberts-Smith’s version of events at Whiskey 108.
Then another soldier, known as Person 11, is expected to deny he shot and killed an unarmed farmer who Mr Roberts-Smith had allegedly kicked down a hill.
Person 11 is expected to testify, as did Mr Roberts-Smith, that they shot dead a Taliban spotter in a cornfield during that raid.
More soldiers will likely denounce a culture of rumours and gossip within the elite fighting force which Mr Roberts-Smith has claimed triggered the media firestorm in 2018.
There will be approximately 20 witnesses in total testifying in support of Mr Roberts-Smith’s case before Justice Anthony Besanko begins considering his verdict.
Now that Nine’s evidence has concluded, and after weeks of confronting headlines, Mr Roberts-Smith’s legal team will no doubt be keen to poke holes in the accounts of several witnesses and recast the evidence about crucial missions.
THE ‘EXECUTION’ AT WHISKEY 108
Mr Roberts-Smith’s legal team are expected introduce evidence to counter Nine’s claims about a raid on Easter Sunday in 2009 on a Taliban compound.
Nine claims an SAS soldier known as Person 4 was ordered to execute an unarmed Afghan during an attack on the compound codenamed Whiskey 108.
While on the stand, Person 4 objected to giving evidence about the mission on the grounds of self-incrimination and Justice Anthony Besanko did not compel him to answer questions.
It means there are only two accounts of the alleged killing – the first from Mr Roberts-Smith who denies any execution took place and the second from a soldier known as Person 41.
Person 41 told the court Mr Roberts-Smith forced an elderly Afghan to his knees and instructed Person 4 to shoot the prisoner inside Whiskey 108.
Person 41 said he stepped out of the room and heard a gunshot before returning to see Person 4 standing over the dead Afghan.
Nine’s case differs on a crucial detail; the newspapers claim it was actually Person 5 who ordered the execution.
Mr Roberts-Smith is complicit because he did not intervene, Nine claimed in court documents.
It is expected Person 5 will deny all wrongdoing.
CLIFF KICK OR CORNFIELD?
Nine will also seek to counter a claim about another raid and alleged execution involving Person 4.
In February Person 4 also told the court he watched Mr Roberts-Smith kick an unarmed Afghan down a steep drop in the village of Darwan in 2012.
The soldier claimed he helped drag the injured Afghan across the dry creek bed before a third SAS soldier executed the farmer point blank as Mr Roberts-Smith watched.
The alleged execution of the farmer, Ali Jan, has become known as Nine’s “centrepiece” claim against Mr Roberts-Smith.
“I was in some shock at that point. It was something I’d never encountered before … the visual effect of seeing someone go off the side,” Person 4 told the court in late February.
Mr Roberts-Smith testified, last year, that he and the third soldier, Person 11, had legally shot dead a Taliban spotter at Darwan who was carrying a radio but no one had been kicked down a cliff.
It’s expected Person 11 will deny executing Ali Jan and will testify in support of Mr Roberts-Smith’s version of events.
The court has heard he was very close to Person 4 but has since cut ties after being accused of a war crime by his mate.
OBJECTIONS AND QUIET DEALS
Mr Roberts-Smith’s legal team have already made much of what they call “secret deals” done between Nine and the newspapers’ witnesses.
The court heard Nine effectively offered to steer clear of war crime allegations against their own witnesses if they agreed to testify against Mr Roberts-Smith on other missions.
So far three witnesses, including Person 4, objected to answering questions on the grounds of “self incrimination”.
That has left black holes in the evidence around potentially crucial moments.
As well as Person 4, who would not speak about Whiskey 108, there was Person 66 who objected to questions about his own alleged blooding in Siah Chow, 2012.
A third soldier, Person 56, objected to speaking about an alleged execution in Khaz Uruzgan also in 2012.
The court has heard immunity certificates, promised to some soldiers in exchange for sensitive testimony, may not protect them from future prosecution outside Australia.
Mr Roberts-Smith’s legal team will likely attempt to fill those gaps with witnesses who will testify Mr Roberts-Smith did not kill outside the rules of engagement.
They are also expected to tell the court the so-called deals raise issues about the credibility of witnesses.
GOSSIP AND RUMOUR
The SAS has been described by multiple soldiers as a toxic and gossipy crew and it’s expected Mr Roberts-Smith’s witnesses will be asked to testify on that as well.
Mr Roberts-Smith clashed with senior members of the SAS who went to the media despite the regiment’s code of secrecy and an ongoing defence inquiry, the court has heard.
The driving motive behind their feud was Mr Roberts-Smith Victoria Cross medal, the elite soldier claims.
The VC was awarded to Mr Roberts-Smith after the legendary battle of Tizak in 2010 but rumours had swirled Person 4 had initially been considered for the top honour before he was passed over.
Person 4 told the court he felt Person 7 “manipulated” his grievances about the VC to speak about the cliff kick at Darwan.
“You were used by Person 7 to tell a story about Darwan so he could bring Mr Roberts-Smith down,” Mr Roberts-Smith’s barrister, Arthur Moses SC, suggested.
“I’ve suspected that,” Person 4 replied.
Person 7 told the court, in evidence, that Mr Roberts-Smith brutalised Afghans, bullied subordinates, intimidated accusers and wanted to choke a man so he could “watch the life drain from his eyes”.
The senior soldier told the court he turned whistleblower by talking to the media so the allegations would be taken seriously.
But Person 7 conceded he spread “petty, childish gossip” about Mr Roberts-Smith in the process of leaking to journalists.
Another soldier, Person 18, said the SAS was like a “country wives’ club” splintered by rumours involving Mr Roberts-Smith.
The first witnesses will be called on Tuesday.
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