SAS soldier says troops blew whistle on war crime allegations, Ben Roberts-Smith claims ‘fraud on justice’ over Nine’s witness ’deal’

An SAS soldier has told the court he and other troops blew the whistle on an alleged war crime committed by Ben Roberts-Smith.

A soldier has told a court he and other squadmates met with SAS commanders to discuss allegations of war crimes and bullying made against Ben Roberts-Smith but were initially turned away.

It comes as Mr Roberts-Smith’s lawyers argue Nine have committed a “fraud on justice” by offering to protect one of the soldiers who has now become “collateral damage” in the case.

Mr Roberts-Smith is suing Nine newspapers and journalists over allegations he committed war crimes in Afghanistan - including an allegation he kicked an unarmed farmer off a cliff in the village of Darwan in 2012.

The Victoria Cross recipient denies he ever killed anyone outside the lawful rules of engagement.

One of Mr Roberts-Smith’s former squadmates, known only as Person 18, was called to give evidence for Nine in the Federal Court on Friday.

Person 18, now an SAS Sergeant, told the court it was late in 2012 when he was getting day-drunk with a soldier known as Person 4 on the base in Perth.

Person 4 became emotional, the soldier told the court, describing the events of Darwan some months earlier.

The distraught soldier, according to Person 18, said “something very bad” happened on the mission.

“Person 4 said words to the effect of ‘I was doing something, I turned around I saw one of my teammates have hold of a detainee and Ben Roberts-Smith kicked him off a cliff’,” Person 18 told the court.

“This is another night of watching friends break down over what happened in Afghanistan - I had enough of it, I was sick of it.”

Ben Roberts-Smith in Afghanistan - an SAS soldier has told the court the regiment’s leaders were informed of alleged war crimes as early as 2013. Picture: Defence

Person 18 said he told multiple members of the SAS regiment and, the following year, he was among a group of soldiers who met with the Regiment Sergeant Major to speak about Darwan.

He told the court Person 4 repeated the allegation about Mr Roberts-Smith to the commanding officer.

“The outcome of the first meeting wasn’t - it wasn’t receptive,” Person 18 said.

“He said it was out of his hands, it was way above his head and he didn’t know what to do with it.”

Person 18 told the court the Regiment Sergeant Major was replaced the next year and a second meeting occurred about a “list of issues” including Darwan.

“I recall Person 4 talking about Darwan, I recall Person 8 talking about bullying. I don‘t recall anything else from that meeting at all,” Person 18 said.

“I recall Person 4’s description of Darwan as he broke down in the office.”

Person 18 also told the court that in mid-2018 he found an envelope at the SAS base in Perth with his name and address handwritten.

It was the first of two “threats”, he told the court, to retract evidence he’d been giving to an official inquiry into war crime allegations run by the Inspector General of the Australian Defence Force.

“The threat I took seriously, I had concern for my own safety and that of my families,” Person 18 told the court.

Mr Roberts-Smith denies Nine’s allegations he authored the letters and had them posted by his former private investigator friend.

Mr Roberts-Smith leaves the Federal Court in Sydney on Friday. Picture: NCA NewsWire / Damian Shaw

Earlier on Friday Mr Roberts-Smith’s barrister, Bruce McClintock SC, appeared before another judge asking her to settle a dispute about documents related to Person 4.

Mr McClintock asked Justice Wendy Abraham to rule that communications, between Person 4’s lawyers and lawyers for Nine, should be handed over.

The documents spell out a “side-deal” quietly offered by Nine to Person 4, the court has heard.

The “agreement” was that Person 4 could block questions about his role in an alleged execution with Mr Roberts-Smith in 2009 if he testified about the alleged cliff kick at Darwan.

Communications between lawyers and their clients are normally confidential because of legal privilege but Mr McClintock argued the deal was a “fraud on justice”.

“It’s a private side-deal between a party and a witness which has the effect… of sidelining the court and my client from the process and in my submission it is profoundly wrong,” Mr McClintock said.

“It’s a quid pro quo… if you give evidence about one topic we will protect you on the other topic.”

Mr Roberts-Smith’s legal team argue Nine’s “deals”, which have now been revealed for two SAS witnesses, should cast doubts on the credibility of the evidence.

But they will not be able to push that point in the trial unless the documents are released by Justice Abraham.

Mr McClintock argues Nine has committed a “fraud on justice” by cutting a deal with SAS witnesses and keeping Mr Roberts-Smith’s team in the dark. Picture: AAP

Nine‘s barrister, Nicholas Owens SC, told the court the deal would only limit the topics of evidence but any testimony would still be given truthfully on the SAS soldier’s oath.

It also wouldn‘t limit Mr Roberts-Smith’s lawyers from asking about the alleged execution allegation.

Mr Owens said Person 4 would be hesitant about giving evidence given he was also accused by Nine of war crimes.

“Person 4 is, as it were, collateral damage to the truth case that we’re bringing against Mr Roberts-Smith,” he said.

Justice Abraham will hand down her decision early next week.

Originally published as SAS soldier says troops blew whistle on war crime allegations, Ben Roberts-Smith claims ‘fraud on justice’ over Nine’s witness ’deal’