Ben Roberts-Smith wins bid to call SAS top brass to defamation trial
An SAS soldier has told a court he has one good reason for knowing Ben Roberts-Smith never ordered an execution in Afghanistan.
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An SAS soldier says Ben Roberts-Smith never ordered the execution of a prisoner in a remote Afghan village and has told a court he has one good reason for knowing his accusers are wrong.
The testimony, which corroborates Mr Roberts-Smith’s evidence, comes as the Victoria Cross recipient won a bid to get one of the most senior SAS officers to testify in his case.
Mr Roberts-Smith is suing Nine newspapers over articles alleging he ordered or carried out war crime murders during deployments with the SAS while in Afghanistan.
He denies the six war crime claims including, as alleged in Nine’s court documents, that he ordered an Afghan special forces soldier to execute a prisoner in the village of Chenartu in late 2012.
An SAS soldier, known as Person 32, gave evidence in the Federal Court on Tuesday about the mission to Chenartu.
Nine claims a soldier known as Person 14 was standing outside the room in which Mr Roberts-Smith and a cohort of Afghan Wakunish soldiers were questioning detained locals.
Person 14 told the court he kicked a discoloured patch of wall and items fell out — it was a weapons cache.
Nine claims Mr Roberts-Smith then told the Afghan soldiers to execute the prisoner who was being questioned, a man in white robes who was clutching a grey waistcoat.
A Wakunish soldier stepped forward and opened fire into the man’s neck multiple times, Nine claims.
Person 32, on Tuesday, said that execution never happened and the story is wrong because Person 14 never discovered a cache.
“I was there when two caches were discovered, which is a big thing,” Person 32 told the court on Tuesday.
“I have no memory of being there when Person 14 discovered a cache.”
Nine’s barrister accused Person 32 of lying to help Mr Roberts-Smith’s case when he said he had no recollection of the Afghan soldiers executing one of their own countrymen on Mr Roberts-Smith’s order.
“The reason you are falsely denying that you have recollection (of the events) is that you’re trying to assist Mr Roberts-Smith in this case,” Nine barrister Nicholas Owens SC said.
“No, it’s not true,” Person 32 said.
This week the court heard a secretive witness, known only as Person 81, will be subpoenaed to give evidence in the high profile defamation suit.
Person 81 was on another mission, in 2009, where Mr Roberts-Smith is accused of two more prisoner executions - both of which he denies.
Mr Roberts-Smith won a bid to subpoena Person 81, who is now one of the top brass in the SAS regiment, after other witnesses said he was present when a tunnel was found beneath a Taliban compound known as Whiskey 108.
Nine claims two Afghans were found in the tunnel and detained by the SAS before Mr Roberts-Smith executed one and ordered a rookie soldier to shoot the second.
Mr Roberts-Smith and his supporters deny anyone was executed at Whiskey 108 and further deny anyone was found inside the tunnel beneath the insurgent base.
Person 81, according to other witnesses, was present when the tunnel was discovered.
It’s not yet known what the senior officer will say about the raid on Whiskey 108 because much of the legal argument was heard behind closed doors.
What is known is that Person 81’s subordinates have, so far, testified in one of two ways; some say no one was found in the tunnel, others say the SAS covered up a war crime.
The trial continues.
May 10: Roberts-Smith loses bid against ex-wife
Ben Roberts-Smith has been denied an appeal that could have seen him grill his ex-wife about whether she leaked his private emails to his critics in the media.
Mr Roberts-Smith is suing Nine newspapers for a series of articles that accused him of war crimes, bullying and domestic violence.
The Victoria Cross recipient denies every allegation against him and has faced off against his accusers in court including SAS soldiers, his ex-wife Emma Roberts and his alleged former ‘mistress’ who is known as Person 17.
The soldier‘s lover had appeared on the doorstep of the family home, in April 2018, and thrown Ms Roberts’ life “into chaos”, she would tell the court in evidence.
Mr Roberts-Smith and Ms Roberts separated in 2020 as his legal action worked through the Federal Court.
He launched a second lawsuit in mid-2021, against his former wife, accusing her of accessing his private emails to Nine either personally or through her best friend.
Ms Roberts denied his claims.
A Federal Court judge, in January this year, accepted Ms Roberts’ denials and ruled Mr Roberts-Smith’s lawyers could not cross-examine her in the stand.
Mr Roberts-Smith applied for a chance to appeal but Justice Michael Wigney, on Monday, refused the soldier‘s bid.
“Mr Roberts- Smith’s real complaint appears to be that the primary judge did not weigh up the evidence in a way which favoured him,” Justice Wigney said in his judgment on Monday.
“The decision of the primary judge is not attended with sufficient doubt to warrant reconsideration by the Full Court.”
Justice Wigney also noted that Ms Roberts‘ evidence in the main trial, against Nine, touched on her access to the emails. If anything significant changed as a result of her evidence, the judge said, Mr Roberts-Smith could launch other legal appeals.
It means the original judge‘s decision will stand and Ms Roberts will not have to step into the witness box to answer questions about the emails.
Mr Roberts-Smith‘s lawyers, in the 2021 lawsuit, claimed Ms Roberts had access to an email connected with his public speaking company, RS Group, and suspected either she or her best friend Danielle Scott had leaked its contents.
Mr Roberts-Smith used the RS Group email to communicate confidential information to his lawyers about the defamation trial and his employer, Seven network.
The former soldier also used the email to communicate with the Inspector General of the Australian Defence Force who is conducting an inquiry into war crime allegations in Afghanistan.
“I think Emma has been accessing my RS Group emails,” Mr Roberts-Smith allegedly told an associate, the court heard.
“Fairfax’s lawyers have details of my emails – how else could they know that stuff?”
Justice Robert Bromwich disagreed.
“(The case) goes no further than bare possibilities and suspicions, with many such assertions in relation to Ms Roberts being shown to be ill-founded as against her, and equally ill-founded as against Ms Scott,“ he said.
Roberts-Smith witness quizzed on kill photo
Afghan Prisoner One, Three and Four were pulled from a ute carrying IED componentry, questioned and photographed — now an SAS soldier denied a photograph of a young man shot dead reveals Ben Roberts-Smith had murdered the missing Prisoner Two.
Ben Roberts-Smith is suing Nine newspapers over a series of articles claiming he participated in illegal executions of Afghan prisoners while deployed with the SAS.
The Victoria Cross recipient steadfastly denies the claims and has called an SAS soldier, known as Person 11, to testify about their missions in Afghanistan.
Person 11 has repeatedly been accused by Nine’s barrister of lying to protect his close friend, Mr Roberts-Smith, because both are accused of jointly conducting or covering up war crime killings.
The former SAS soldier denies the allegations and has said the truth will clear their names.
In late 2012, the court has heard, Mr Roberts-Smith’s SAS patrol stopped a Toyota Hilux near the town of Fasil.
Nine claims the SAS discovered IED componentry in the HiLux and detained the men before Person 11 and Mr Roberts-Smith took them away for questioning in a nearby compound.
Nine’s barrister, Nicholas Owens SC, showed Person 11 three photographs purporting to show Afghan detainees, known as PUCs, who had been captured at Fasil.
The court heard the men were photographed with labels bearing “GB”, the initials of their SAS captors’ patrol Gothic Bravo, and a number.
Person 11 agreed the prisoners photographed were labelled GB1, GB3 and GB4.
There were no photographs of prisoner GB2, Nine’s barrister said.
“The reason there is no photograph of the second PUC from Gothic Bravo is that he was murdered by Mr Roberts-Smith in the compound,” Mr Owens said.
“I disagree with that,” Person 11 replied.
Mr Owens showed Person 11 a photograph of another man, shot dead on the ground, and suggested that was the fate of prisoner GB2.
“It’s correct that the fourth PUC handed to you, in addition to the ones I’ve shown you, is the one deceased in the image I showed you a moment ago?” Mr Owens asked.
“I reject that, Mr Owens,” Person 11 responded.
Mr Roberts-Smith’s legal team has another explanation for GB2 not being photographed at Tarin Kowt after the mission - he was released unharmed at Fasil.
Person 11 said he did not recognise any of the PUCs in the images and had no memory of being tasked with handling any prisoners at Fasil.
The SAS soldier who claimed he detained the men at Fasil, Person 16, told the court Mr Roberts-Smith later boasted of killing one of the prisoners - a teenage boy.
Person 16 told the court the young Afghan was “shaking like a leaf” after they were detained by the road side and led away by Mr Roberts-Smith.
Person 16 said he later asked Mr Roberts-Smith what happened to the scared teenager.
“I shot that c*** in the head,” Person 16 claims Mr Roberts-Smith responded.
“(I) blew his brains out, it was the most beautiful thing I’ve ever seen.”
Mr Roberts-Smith totally denies he killed any detainee and his lawyers say the quotes falsely attributed to him are the words of an “ostentatious psychopath” akin to a line from the film Apocalypse Now.
Person 11, earlier on Thursday, denied he witnessed Mr Roberts-Smith order another execution just a few weeks earlier in 2012.
Nine claims Person 11 was standing behind Mr Roberts-Smith as he questioned a detained Afghan in the village of Chernatu.
Another SAS soldier has told a court he kicked a wall which dislodged a weapons cache nearby and, when Mr Roberts-Smith saw what happened, he ordered an Afghan commander to have the detainee shot dead.
Person 11 denied he witnessed any questioning, cache or execution at Chernatu.
There was nothing about the mission that stuck in his mind, he said, other than a military working dog which was injured earlier in the day.
The trial continues.
May 11: Shock allegation against Roberts-Smith witness
“The truth will prevail” and clear the names of SAS soldiers accused of war crimes in Afghanistan - including Ben Roberts-Smith, a soldier accused of executing a villager has told a court in powerful testimony.
The same court has heard Nine newspapers now believe the SAS soldier, facing investigation over the killing, is trying to derail any criminal murder prosecution before it even begins.
Mr Roberts-Smith is suing Nine newspapers in the Federal Court after the media outlets accused him of killing unarmed Afghan prisoners while deployed with the SAS.
Their centrepiece allegation is that, in 2012, the elite soldier kicked an unarmed, handcuffed Afghan farmer off a cliff in the village of Darwan.
An SAS soldier known as Person 4 told the court, in February, that he watched the farmer tumble down the rocky incline and into the dry creek below.
The shepherd, Ali Jan, had shattered his teeth on a rock on the way down and was badly injured when Person 4 and his close mate, a soldier known as Person 11, dragged him across the dry creek bed.
Person 4 told the court he turned his back and heard gunshots ring out — when he turned back he saw Person 11 with his weapon raised and Mr Roberts-Smith watching on.
Three years later, the court heard this week, Person 4 was best man at Person 11’s wedding.
But their close relationship, which developed through multiple deployments with the SAS, is now totally broken.
Person 11 told the court he became aware in 2018 that Person 4 was behind allegations he had executed a prisoner — known in military slang as a PUC — at Darwan.
“I felt incredibly hurt by that,” Person 11 told the court on Wednesday.
“That someone so close for a number of years, a mentor, a good friend not just professionally but personally, would have said such things that caused me so much grief and heartache.”
Person 11 repeatedly and vehemently denied any prisoner was kicked off a cliff and said he had no knowledge of any AFP investigation into his actions in Afghanistan.
Person 11 told the court he suffered a near mental breakdown after interviews with the Inspector General for the Australian Defence Force, the inquiry into war crime allegations, before Mr Roberts-Smith organised lawyers to help him.
The court heard that over the years those lawyers have done about $125,000 worth of work for Person 11 but he has no idea who is paying the bill.
Nine’s barrister, Nicholas Owens SC, accused the soldier of lying under oath to prove his loyalty to Mr Roberts-Smith because of the legal funding.
Person 11 denied it.
But Mr Owens went even further, alleging Person 11 also understood there was a risk he would some day be charged with murder over the shooting at Darwan.
The Australian Federal Police, who are investigating the allegations from the IGADF, have asked to interview Person 11 on multiple occasions but have been refused, the court heard.
“You understand this case, a civil case, you see it as a possibility to influence whether a (murder) prosecution may ever be brought,” Mr Owens said.
“My intent is to tell the truth and, because of the allegations against me, I am here to set the record straight,” Person 11 said.
Mr Owens said Person 11 was lying about Darwan to prove loyalty to Mr Roberts-Smith because if either man turned on the other then it would be almost impossible to beat a murder charge.
“I’m here to tell the truth,” Person 11 said.
“The truth will prevail and will clear. I understand this is not a criminal trial, this is a civil trial, nonetheless I’m here to tell the truth.”
“There are allegations of (Mr Roberts-Smith) as a war criminal and against me as a war criminal, yes, but we each have our own paths to tread to clear our names.”
Person 11 said he wrestled with the knowledge that Person 4, his best man, had effectively accused him of murder.
But Person 11 disagreed he trusted Person 4 to “keep things quiet”.
“I certainly trusted him for many, many years,” Person 11 said.
“My trust was that he had my back on missions while isolated from other callsigns and getting through very, very tough times… This isn’t trusting he would keep things quiet.”
The SAS soldier told the court he spoke to counsellors but eventually decided to call his mate.
“It was brief, but I laid out I was hurt deeply, disappointed, and that I was aware of what was going on,” Person 11 said.
“And from this time forward our personal relationship was over.”
If the two men, who were both still serving in the ADF in 2018, came into contact through their work then that would be the only contact they would have, Person 11 said.
Person 4, the court has heard, had become emotional talking to friends in the months following the Darwan raid telling his friends and superiors he had witnessed a PUC kicked off a cliff and executed.
A mission log, tendered to the court, records an “EKIA” or “enemy killed in action” at 11:09am, shortly before the Australian forces flew out of Darwan and back to base.
Mr Roberts-Smith and Person 11 have both vehemently denied Person 4’s claim and instead say the EKIA in the final moments of the Darwan raid was a Taliban scout - a “spotter”.
Person 11, in his evidence, said he was moving with Mr Roberts-Smith and Person 4 to an helicopter landing zone on the edge of Darwan and had crossed the dry creek bed.
When he emerged into the field on the far side of the dry creek, Person 11 said, he saw an Afghan move from a crouching position and trying to remain hidden in the cornfield, carrying a radio.
Person 11 and Mr Roberts-Smith have both told the court they opened fire and killed the man, and photographed his body with the radio.
Nine’s barrister, Nicholas Owens SC, said that is a lie.
“You and Mr Roberts-Smith have concocted a false story… to cover up the fact Mr Roberts-Smith kicked a PUC off a cliff and you shot him in that field,” the barrister said on Wednesday.
“That is not correct,” Person 11 responded.
The trial continues.
May 10: ‘Shepherd kicked off cliff’ death never happened, witness says
An SAS soldier has bolstered Ben Roberts-Smith’s claims that the only man shot dead during a 2012 was a Taliban “threat” to Australian soldiers, not a detained shepherd kicked off a cliff as claimed by Nine newspapers.
Mr Roberts-Smith is suing Nine newspapers over allegations he was involved in the killing of six unarmed Afghans while deployed with the SAS.
The Victoria Cross recipient denies all the allegations against him and much of the case has focused on Nine’s claim that Mr Roberts-Smith kicked a detained shepherd named Ali Jan off a cliff in September 2012.
Nine further claims two SAS soldiers, Person 4 and Person 11, dragged the injured Mr Jan across a dry creek bed before Person 11 executed him.
The three SAS soldiers and a handful of Afghan villagers are the only witnesses to what has become Nine’s “centrepiece” war crime allegation.
Person 11, on Tuesday, told the court he and his two squadmates trudged through a dry creek bed and emerged into a cornfield on their way to meet their helicopter.
“Shortly after coming out of the dry creek bed I identified an individual in among the corn and rest of the fields,” Person 11 told the court.
“This individual was moving, in my assessment, in a very suspicious manner.”
“I saw this person was carrying a radio, which led me to make an assessment that this was a spotter who had come to report on our disposition and movements.”
A “spotter”, the court has heard, was a member of the Taliban insurgency who would report on the movement of Coalition soldiers using radios and are considered threats.
Person 11 said it was clear the man in the field was trying to remain hidden as the helicopters were fast approaching.
“I assessed he posed a direct threat to our extraction and incoming forces so I engaged,” Person 11 said.
Person 11 said he opened fire with his M4 assault rifle, three to five rounds, and Mr Roberts-Smith standing behind him did the same.
They killed the man in the field, Person 11 said, and made sure the area was cleared.
The SAS approached the body and searched it, finding the ICOM radio near the corpse, and photographing the bloody scene.
Mr Roberts-Smith’s barrister, Arthur Moses SC, put Nine’s allegation about Darwan squarely to Person 11.
“It’s alleged by (Nine) in this case that the wound to the person’s mouth were caused by his head hitting a rock after he was kicked off a slope by Mr Roberts-Smith – what do you say about that allegation?” the barrister asked.
“I reject that allegation,” Person 11 responded.
Person 11’s story dovetails with Mr Roberts-Smith’s; both men say a spotter was shot dead in a cornfield in the moments before the helicopters landed in Darwan.
But their story is totally different from that of Person 4 who recounted a far more brutal version of events when he testified in February.
Unlike Person 11 and Mr Roberts-Smith, Person 4 said the SAS patrol found fighting aged males in the buildings in Darwan and detained them.
Person 4 told the court one of the men was handcuffed and placed on his knees on the edge of a steep drop overlooking the dry creek bed below.
“The individual was catapulted backward and fell down the slope. I looked down the drop off, I saw the individual’s face strike a large rock and sustain a serious injury … It knocked out a number of his teeth including his front teeth.”
Person 4 said he was “in shock” seeing the teeth explode out of Mr Jan’s face and he helped drag the injured shepherd across the creek.
A few minutes later he turned his back and heard two to three shots ring out.
Person 11 was standing there with his M4 raised, in a firing position, while Mr Roberts-Smith watched the execution, Person 4 told the court.
Person 4 told the court the SAS placed the radio on Mr Jan’s body and, when he inspected it closely, saw it had water inside the screen.
Earlier in the day, the court has heard, Mr Roberts-Smith had removed his body armour, swum across a river and killed an armed insurgent.
“It dawned on me where (the radio) had come from … The individual from across the river,” Person 4 told the court.
Darwan villagers have also told the court Mr Jan was not a Taliban member and was not carrying a radio.
They claimed, last year, that Mr Jan was “martyred” by a “big soldier”.
The SAS were in Darwan in September 2012 hunting a traitor from the Afghan army named Hekmatullah.
Hekmatullah had shot dead three Australian Diggers; Lance Corporal Stjepan Milosevic, Sapper James Martin and Private Robert Poate just weeks earlier as they played cards in the Australian base.
Person 11, on Tuesday, told the court the SAS were told Darwan was known to Hekmatullah or people there had harboured him.
“The search had gone on for two weeks involving all Coalition assets to bring justice for the three Australians who were murdered,” Person 11 said.
Hekmatullah spent seven years in an Afghan prison before being released from custody when the Taliban took control of the nation late last year.
The trial continues.
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