Shock allegation against key witness in Ben Roberts-Smith trial

An SAS soldier accused of executing a prisoner kicked off a cliff by Ben Roberts-Smith has been hit with an explosive allegation.

“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.

Mr Roberts-Smith has been calling witnesses from his days in the SAS to testify in his defamation lawsuit against war crime allegations made by Nine. Picture: Defence

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 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 could, someday, 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.

An SAS soldier has told a court he was testifying to share the truth - not because he owed Ben Roberts-Smith or hoped to derail any potential murder trial that could result from war crime investigations. Picture: Defence, stock image.

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 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 said he wrestled with the knowledge that his best man, who had never said anything about the allegation to his face, 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… 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.”

An SAS soldier has spoken of the “grief” of being accused of a war crime killing by his best man, another soldier. Picture: ADF stock image

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”.

The village of Darwan, Afghanistan. Mr Roberts-Smith marked up the photograph during his evidence with black marker to show points and paths navigated by his troop. Picture: Australian Federal Police

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.

Originally published as Shock allegation against key witness in Ben Roberts-Smith trial