Ben Roberts-Smith trial evidence finishes with SAS commander
The marathon trial of Ben Roberts-Smith has heard the final piece of evidence from an SAS commander on the ground when his troops allegedly carried out war crimes.
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A top ranking SAS officer has delivered the final word of evidence in Ben Roberts-Smith’s defamation trial, after being questioned whether Mr Roberts-Smith and two more soldiers could have secretly carried out war crime executions under his nose.
The still-serving commander, known by his codename Person 81, was quizzed by barristers for both Nine newspapers and Mr Roberts-Smith on Thursday morning about one of the most infamous allegations in the marathon defamation trial.
Mr Roberts-Smith is suing Nine newspapers after they accused him of six war crime executions while deployed with the SAS in Afghanistan.
The Victoria Cross recipient denies every claim including two alleged killings that took place in a Taliban base known as Whiskey 108 in April 2009.
Nine claims the SAS were securing the Whiskey 108 compound when they discovered two men hiding in a subterranean tunnel and detained them.
The newspapers claim Mr Roberts-Smith marched one of the Persons Under Confinement (PUCs) outside the compound and killed the Afghan, who had a fake leg, with a machine gun.
They further claim Mr Roberts-Smith watched as his patrol commander, known as Person 5, ordered the troop’s “rookie”, Person 4, to execute the second elderly detained Afghan.
Mr Roberts-Smith and Person 5 have both steadfastly denied the claims of war crime murder while Person 4 refused to testify about Whiskey 108 on the grounds of self-incrimination earlier this year.
Person 81 was running the SAS operation at Whiskey 108 and was shown a combat report which detailed nine enemies were killed in action at the Taliban base.
Nine put their allegation squarely to Person 81 - that three of his soldiers had carried out war crime executions during the mission and then lied to him.
“Our case is the old man and the man with the prosthetic leg were found in the tunnel, were PUC’d and then murdered by one or more of Person 4, Person 5 and Mr Roberts-Smith without your knowledge or authorisation,” Nine’s barrister Nicholas Owens SC said.
“From my recollection of events, I couldn’t speculate,” Person 81 said.
Person 81 began to tell the court he had “read reports” about the allegations but couldn’t speak about them.
The court has previously heard Person 81 reference hearing about the alleged tunnel killings at the highly secretive war crime investigation known as the Brereton Inquiry.
The after combat report says two of the enemies killed in action at Whiskey 108 were “squirters” - suspected insurgents who try to flee the battle.
Nine’s case is that Person 81 was falsely told by his men that the two executed Afghans were squirters.
Person 81 said he was told the men were squirters following the mission.
The final question to Person 81 came from Mr Roberts-Smith’s barrister, Arthur Moses SC, attempting to counter Nine’s case.
“Did you observe any conduct by Person 4, Person 5 or Mr Roberts-Smith that caused you to have a suspicion they PUC’d or murdered anybody?” Mr Moses asked.
“No, I did not,” Person 81 responded.
Person 81 told the court he was unable to say whether or not the dead men were executed as he only heard of the circumstances after the fighting had stopped.
“You are unable to say, one way or another, whether those men were PUC’d at the time of their death?” Mr Owens asked.
“I wouldn’t know,” Person 81 responded.
“And you’re unable to say one way or another whether the old man was executed by Person 4 encouraged by Person 4 and Person 5?” the barrister continued.
“I couldn’t say, no.”
“And you’re unable to say whether the man with the prosthetic leg was executed by Mr Roberts-Smith?” Mr Owens asked.
“I couldn’t say.”
The end of Person 81’s evidence marks the end of months of testimony in what has come to be dubbed the defamation trial of the century.
Mr Roberts-Smith launched the lawsuit in 2018 following the damaging articles in Nine’s newspapers.
Since then the case has been delayed by the Covid-19 pandemic and sprawled to encompass 40 witnesses.
Many were Mr Roberts-Smith’s former SAS comrades, some were called on by Nine to accuse him of war crimes, bullying and threats that resulted in hundreds of damaging headlines.
Then Mr Roberts-Smith began calling his own allies from the elite fighting squad to deny the war crime allegations and denounce the SAS soldiers who went to the media.
Other witnesses included Mr Roberts-Smith’s ex wife, Emma Roberts, and his former alleged mistress who claimed he had abused her.
Three Afghan villagers, the family of a man allegedly kicked off a cliff by Mr Roberts-Smith, also told the court the SAS “martyred” their relative.
Mr Roberts-Smith denied all claims and said the case was the result of a “tall poppy” syndrome within the SAS with bitter soldiers trying to tear him down because he was given the top military honour - the Victoria Cross - for risking his life to save his mates.
His barristers will officially close his case tomorrow after a debate about documents.
Closing submissions will be made to Justice Anthony Besanko in July before the judge retires to consider his verdict.
It’s unknown how long until Justice Besanko hands down his decision.
Until then all eyes will turn to the highly secretive Office of the Special Investigator, which was set up in the wake of the Brereton Inquiry to dig into the war crime allegations.
So far it has made no arrests and laid no charges.
Top SAS officer testifies for Roberts-Smith
One of the most senior members of the elite Special Air Service has stepped into the witness box to testify at the defamation trial of Ben Roberts-Smith about alleged war crimes in Afghanistan.
Mr Roberts-Smith is suing Nine newspapers after they published articles claiming he was involved in six executions while deployed with the SAS.
Nine insists the articles are true, the Victoria Cross recipient denies every allegation.
The marathon trial’s 40th and likely final witness, codenamed Person 81, stepped into Sydney’s Federal Court on Wednesday following weeks of anticipation.
The high ranking SAS officer, who cannot be identified, was subpoenaed to testify about one particular set of war crime allegations dating back to Easter Sunday, 2009.
More than two dozen SAS soldiers plus specialists were under the command of Person 81 when they marched toward a recently bombed Taliban compound known as Whiskey 108 on that day.
Nine has claimed two Afghan men were found hiding in a tunnel beneath the compound - now a crucial dispute in the case.
That is because the papers have further claimed Mr Roberts-Smith took those prisoners, executed one, and watched as a “rookie” SAS soldier executed the second.
The Afghans were detainees, known as PUCs in military shorthand, and their deaths amount to war crime murders, Nine claims.
Person 81, under questioning by Mr Roberts-Smith’s barrister, Arthur Moses SC, told the court no one had told him any Afghans were found in the tunnel and he didn’t see any prisoners taken at the site himself either.
“Did you see any Afghan fighting-aged males come out of the tunnel at Whiskey 108?” Mr Moses asked.
“No,” Person 81 replied.
“Did you see any Afghan fighting-aged males being PUC’d near the tunnel at Whiskey 108?”
“No,” the SAS officer repeated.
Person 81 said he did see Afghans, alive, at Whiskey 108 but could not recall any specifics about their identity.
“One distinct memory I have is just a lady sweeping,” he told the court.
One of the Afghans killed at Whiskey 108 had a fake leg which was taken as a trophy by the SAS and turned into a macabre drinking vessel, the court has heard.
Mr Roberts-Smith denies Nine’s claims that he grabbed the Afghan after he was detained, marched him outside the compound and executed him with a machine gun.
Instead, Mr Roberts-Smith testified, he shot the one-legged Afghan because he was an armed insurgent moving quickly through the chaotic battlefield.
Person 81, on Wednesday, said he did not see the one-legged man alive but did see death at Whiskey 108.
“I saw body parts, parts of bodies in the rubble around rocket paraphernalia,” he told the court.
“The only body I saw was in transit from Whiskey 108 to Whiskey 109.”
“I was told, post that, that he had a prosthetic leg, but I’m not sure if I picked that up at the time.”
Person 81 told the court that he did not hear any allegations of wrongdoing by his men in the aftermath of Whiskey 108 or, indeed, for years after the mission.
If such allegations had been raised, Person 81 told the court, he would have reported them up the chain of command.
It was only in a “recent inquiry” that Person 81 claims he heard the allegation of men hiding in the tunnel being executed.
Lawyers for the Commonwealth have swiftly moved to suppress any information about what was discussed behind the closed doors of the Brereton Inquiry, the government’s inquiry into war crime allegations.
The inquiry concluded there was “credible information” about war crimes committed by the SAS but, as yet, there have been no charges by the investigators following up on the findings.
Soldier recalled to explain puzzling Roberts-Smith case detail
An SAS soldier, who testified for Ben Roberts-Smith about a puzzling war story, has been recalled to give more evidence behind closed doors in the marathon defamation case.
Mr Roberts-Smith is suing Nine newspapers over a series of articles in which they claimed he committed war crime murders in Afghanistan.
The Victoria Cross recipient denies each allegation and has been calling witnesses for over a month to testify in his case.
The court, on Monday, heard a witness codenamed Person 27 was now being recalled to testify in closed court.
He had been overseas until this weekend and the court had struggled to locate him — but he will now give evidence on Tuesday afternoon.
It’s not yet clear if the public will learn what Person 27 is being recalled over — but the SAS soldier previously told the court Mr Roberts-Smith’s lawyers were behind a strange comment that has appeared in multiple court documents.
The court has heard claims Mr Roberts-Smith, at the end of 2012, ordered an Afghan special forces soldier to execute a detained civilian after the SAS discovered a weapons cache.
Some soldiers have claimed they witnessed the killing — others, including Mr Roberts-Smith, deny any such shooting took place.
Mr Roberts-Smith and four other SAS soldiers submitted outlines of evidence to the court that said Nine’s allegation was wrong.
Their reason was simple and clear — an Afghan soldier, which Nine claims was also involved in the killing, was not working with the Australians at that time in 2012.
Person 27 was among those witnesses who said that particular Wakunish soldier, or “Waka”, had been removed from service because he shot a dog.
The bullet ricocheted and hit an Australian soldier in the rear, Mr Roberts-Smith’s witnesses said in their outline of evidence.
But Person 27, speaking on the stand this month, told the court that the outline of evidence was incorrect.
The Wakunish soldier Mr Roberts-Smith’s side accused of shooting the dog, known only as Person 12, had not been removed from service, the court has now repeatedly heard.
“Who first used Person 12’s name?” Nine’s barrister asked.
“Ben’s lawyers,” Person 27 responded.
Last month Nine’s barrister, Nicholas Owens SC, accused Mr Roberts-Smith’s witnesses of “colluding” to give false evidence that would make Nine’s allegation impossible.
Mr Roberts-Smith’s legal team deny there was any collusion.
Person 27’s evidence is expected to last just one day before the court prepares to hear from a high ranking SAS officer.
The officer, who cannot be identified, will give evidence on another mission in which Nine claims Mr Roberts-Smith carried out war crimes.
The multi-year case is expected to close on Friday.
Senior SAS officer to be called
The defamation trial of Ben Roberts-Smith remains on hold with the most high ranking SAS witness caught in legal limbo for at least another week.
Not much is known about the final witness, and even less can be revealed to the public, but the scant details hint he will be one of the most significant in the long-running case.
Mr Roberts-Smith is suing Nine newspapers over a series of articles alleging he was involved in six war crime murders while deployed with the SAS in Afghanistan.
He denies each claim while Nine newspapers is arguing a truth defence.
One of the central allegations, mounted by Nine, is that Mr Roberts-Smith was involved in the murder of two Afghan prisoners found on Easter Sunday 2009.
Mr Roberts-Smith denies anyone died in the raid on the Taliban compound known as Whiskey 108 — aside from insurgents.
SAS soldiers, in recent weeks, have been questioned about Whiskey 108.
Person 5, a patrol commander, told the court he raced outside after hearing gunshots and learned insurgents had been shot dead.
The patrol commander said he reported the shooting to the SAS troop commander at Whiskey 108 — codenamed Person 81.
Person 81’s name and exact role within the SAS cannot be revealed.
That’s because there are national security reasons to keep the highly-trained soldiers, who have access to classified information, entirely anonymous.
What can be revealed is Person 81 is among the top brass in the unit.
It’s also known that Person 81 was on the ground at Whiskey 108 and was in charge of about two dozen SAS soldiers.
Many of those men have now given evidence accusing or denouncing each other.
Person 5 and Mr Roberts-Smith are accused of jointly ordering a junior SAS operator to carry out an execution at Whiskey 108 to “blood the rookie” soldier.
They both deny that.
Nine claims the two Afghans, who were detained and illegally shot dead, were hiding in a tunnel beneath Whiskey 108.
Mr Roberts-Smith and his witnesses deny anyone was found in the tunnel.
It’s expected Person 81 will be asked about the existence of the tunnel or if he had any knowledge or heard any discussion, following Whiskey 108, of executions.
Nine makes no mention of Person 81 in the legal documents that summarise their case but the court has heard commanders bear responsibility for ensuring their subordinates follow the rules of engagement.
The senior officer was expected to front the court on Friday but the change of government has delayed the release of sensitive ADF documents by the Attorney-General in Canberra.
That means the legal teams in the case cannot call Person 81 to give evidence until at least next Friday.
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