‘Grave’: SAS witness may be compelled to give ’murder’ evidence at Ben Roberts-Smith defamation trial

The Ben Roberts-Smith defamation trial could hang on the evidence of one SAS soldier - but his lawyer has told a court the evidence carries risks he could be prosecuted.

A court will consider compelling an SAS soldier to give evidence about the alleged murder of an unarmed Afghan in the defamation trial launched by Ben Roberts-Smith despite his lawyer warning it could expose him to war crime prosecution.

Mr Roberts-Smith is suing Nine newspapers for a series of articles that claim he killed unarmed Afghans while fighting with the SAS.

Nine insists their articles are true while Mr Roberts-Smith denies every allegation.

The newspapers have called multiple SAS witnesses who claim they have witnessed or participated indirectly in alleged war crimes.

One crucial witness, known only as Person 66, stepped into the witness box this week to give evidence about a mission in the Afghan region of Syahchow in 2012.

Nine claims Mr Roberts-Smith forced an Afghan detainee to kneel in a field outside the village and ordered Person 66 to execute the unarmed man so the junior soldier could be “blooded” with a kill.

Mr Roberts-Smith denies that.

Some of Mr Roberts-Smith’s former squadmates in the SAS have testified against him, one is being asked to confess to murder but has refused. Picture: Defence

Person 66 objected to answering questions about his 2012 military operations with Mr Roberts-Smith citing “self-incrimination”.

That means Justice Anthony Besanko must now determine if the man should be compelled to give evidence.

The stakes could not be higher - Person 66 is being asked to confess to murder, Nine’s barrister Nicholas Owens SC told the court.

Nine hopes to convince the court that Mr Roberts-Smith is a war criminal based on the evidence of other SAS witnesses who claim he killed unarmed Afghans during other SAS raids.

But, Mr Owens said, proving the killing at Syahchow would be an “independent path home to victory” for the newspapers.

In other words - even if Nine fails to prove every other killing was a war crime they would still win the case if they proved Mr Roberts-Smith ordered a murder at Syahchow.

Person 66 is the only eye witness to the alleged killing at Syahchow, the court heard.

But the SAS soldier’s barrister, Jack Tracey, asked Justice Besanko to allow his client to stay silent.

“The particular evidence is of a nature that, if it were given, it would involve self incrimination of the gravest kind,” Mr Tracey said.

Mr Roberts-Smith is suing Nine newspapers, denying their claims he shot and killed detained Afghans while in the elite SAS. Picture: NCA NewsWire / Nikki Short

A report by the Inspector General of the Australian Defence Force, in 2020, found “credible information” that 39 people were killed unlawfully in Afghanistan.

Australian authorities are now investigating those allegations.

Person 66 is not charged and is facing no pending charges, Mr Tracey said, but the investigations still weighed against the soldier giving evidence.

“The court should consider it a heightened risk that, just by reason of those investigations occurring, my client may potentially be charged in the future,” Mr Tracey said.

Mr Tracey said there was also a low but present risk that the International Criminal Court would listen in to the evidence and consider taking action against the SAS soldier.

Mr Tracey warned there were doubts the so-called immunity certificates, offered to witnesses including Person 66, would actually protect the SAS soldiers either in Australia or internationally.

The court must consider balancing between a civil court case against Person 66’s liberty, which was now at stake, he said.

“At the end of the day, the balance of the interest of justice lies with my client not being required to give the evidence,” Mr Tracey said.

SAS soldiers have testified against Ben Roberts-Smith in support of Nine’s allegations of war crimes. The Victoria Cross winner denies each one. Picture: Defence

Nine’s barrister, Mr Owens, disagreed that the ICC would prosecute Person 66 saying the global war crime court would not interfere while Australia was investigating its own soldiers.

Mr Owens said he argued there was “zero risk” of an ICC prosecution, contrasted to another soldier who faced a ”theoretical risk”.

“Australia wouldn‘t supply compelled testimony to the ICC used against the witness and even if that happened the ICC wouldn’t be able to use that evidence against the witness,” he told the court.

The court also heard Person 66 has PTSD, though the court heard some of his symptoms had settled. But Mr Tracey warned about the impact of giving evidence on the soldier.

“The effect of having him give evidence would put his well being and, indeed, his life at risk,” he said.

Justice Besanko will return his decision on Wednesday.

Originally published as ‘Grave’: SAS witness may be compelled to give ’murder’ evidence at Ben Roberts-Smith defamation trial