Bizarre twist in Ben Roberts-Smith war crimes defamation trial

The Ben Roberts-Smith defamation trial has taken an unexpected turn after zeroing in on potentially crucial evidence about one thing.

The defamation trial of Ben Roberts-Smith has become a bizarre whodunit involving a “pudgy” Afghan, a dead dog, an injured Australian soldier and allegations of “collusion” and “false statements”.

Mr Roberts-Smith is suing Nine newspapers over articles alleging he is a war criminal, killer and abuser - claims he says are all false.

Nine newspapers are defending the allegations as true and insist Mr Roberts-Smith killed unarmed Afghans himself, or ordered executions.

But the trial has taken an unexpected turn over the last few weeks as both sides lead potentially crucial evidence on which Afghan soldier shot a dog a decade ago.

An SAS soldier known as Person 27 began testifying for Mr Roberts-Smith this week where he was asked about his multiple missions alongside the Victoria Cross recipient.

During cross examination by Nine’s barristers he was asked about a mission to the Afghan region of Khaz Uruzgan in late 2012.

Nine claims Mr Roberts-Smith and members of the local partner force, known as the Wakunish or “Wakas”, were questioning detained Afghans during that mission.

One SAS soldier has told the court he kicked a wall and discovered hidden weapons during the questioning.

That allegedly prompted Mr Roberts-Smith to order a Wakunish soldier, known as Person 12, to give the order to execute one of the detainees.

But five of Mr Roberts-Smith’s witnesses lodged outlines of evidence claiming Person 12 was not at Khaz Uruzgan because he had been removed from serving with the SAS earlier in 2012.

SAS soldiers have been testifying for Ben Roberts-Smith in his Federal Court defamation action against Nine newspapers.

Person 12 had been kicked off the force, the court has heard, after he shot a dog causing the bullet to ricochet and hit an Australian soldier in the buttocks.

If Person 12 was removed from the partner force then he would not have been at Khaz Uruzgan and could not have carried out the execution or ordered it as Nine claimed.

But Person 27, this week, became the second witness to agree his legal document contained an “error” about Person 12 shooting the dog and the Australian soldier.

Person 27, under cross examination on Tuesday, told the court the first time he heard an allegation Person 12 shot the dog was when he was interviewed by Mr Roberts-Smith’s lawyers.

“Who first used Person 12’s name?” Nine’s barrister asked.

“Ben’s lawyers,” Person 27 responded.

Mr Roberts-Smith became a national hero after being awarded the Victoria Cross for his actions in 2010. Picture: AAP

Person 27 told the court he had been asked to look over his outline of evidence, which spelled out what he’d say in court, and he raised the issue of the dog shooter’s identity.

“I said ‘I’m not sure about that, I can find out because I am able to talk to Person 57 but I was not there, I have no idea who that partner force (Wakunish) was’,” Person 27 told the court.

Person 27 told the court he spoke to Person 57 some time in the second half of 2019.

“It’s not the one everyone thinks it is, it’s the pudgy Waka,” Person 57 responded, the court heard.

Person 27 said he told Mr Roberts-Smith, some time later, that Person 57 would be able to talk about the identity of the Wakunish shooter.

The court has heard the outline of evidence for Person 27 was filed in July 2019 and accuses Person 12 of the shooting.

Nine newspapers’ barrister, Nicholas Owens SC, said Person 27 had effectively provided a “false statement” to the court.

Last month Mr Owens alleged “collusion” because Mr Roberts-Smith and four witnesses had all accused Person 12 of shooting the dog.

Late last week one of Mr Roberts-Smith’s allies, Person 35, backed away from his document that accused Person 12.

Mr Roberts-Smith says he never killed any Afghans outside the rules of engagement. Picture: AAP

Person 35, on Thursday, conceded he “remembered incorrectly” and agreed Coalition military documents showed Person 12 was not kicked off the force.

He denied deliberately misleading the court and said he simply remembered the events differently.

Mr Roberts-Smith, in his own evidence last year, also raised doubts as to who shot the dog and who was removed from service with the SAS.

The trial continues.

Originally published as Bizarre twist in Ben Roberts-Smith war crimes defamation trial