Ben Roberts-Smith involved in two new Afghan detainee murders: court
The court in Australian special forces veteran Ben Roberts-Smith’s defamation proceedings has heard claims of complicity in two more Afghan detainee killings.
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Decorated Australian soldier Ben Roberts-Smith has been accused of involvement in two more Afghan prisoner of war killings, his defamation lawsuit heard.
Ben Roberts-Smith is suing three former Fairfax newspapers over articles he says paints him as a war criminal who covered up murder while serving in Afghanistan between 2009 and 2012.
The Victoria Cross recipient vehemently denies any wrongdoing and on Tuesday the Federal Court heard The Sydney Morning Herald and The Age newspapers are seeking to rely on two additional claims of murder as part of their amended defence.
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Barrister Sandy Dawson SC said a March episode of the ABC’s Four Corners exposed the killing of an Afghan man in the village of Sola in Uruzgan province in August 2012.
The court heard a Special Air Service (SAS) Regiment soldier under Mr Roberts-Smith’s command asked for a 'throw-down' - a radio or a weapon used to make the death of a civilian look like the lawful killing of an insurgent.
“Mr Roberts-Smith deploying the 'throw-down' was designed to make the kill appear permissible,” Mr Dawson said.
But the special forces veteran’s barrister Bruce McClintock SC said: "Fairfax have led no evidence about the source of the information now relied on — this is stark in relation to Sola.”
A second fresh claim, according to the amended defence, is that Mr Roberts-Smith pressured an inexperienced soldier in his patrol to murder an unarmed Afghan to "blood” the rookie in the nearby village of Syahchow in October 2012.
“The applicant stood behind Person 66 and ordered him to shoot… (he) had not previously killed anybody,” Mr Dawson said.
Mr McClintock said Mr Roberts-Smith is accused of ordering the young soldier to shoot one of two Afghan men in a field, but there was no explanation of who was actually killed.
The barrister told the court he suspected the defence hadn’t even spoken to the elite troop known as Person 66 and was instead relying on “gossip” and rumours.
“This is “on or about” 20 October… the sheer lack of specificity in this is prejudicial,” Mr McClintock said.
The papers, now owned by Nine Entertainment, propose to call four Afghan witnesses to give evidence about the alleged execution of another unarmed prisoner named Ali Jan, and Mr Dawson rejected suggestions they had withheld that information for some time.
The media outlets originally published allegations Mr Roberts-Smith kicked a bound Afghan prisoner off a cliff during a mission in the village of Darwan in September 2012.
“The kicking incident was severe enough... that his teeth were knocked out of his mouth,” Mr Dawson said.
“(It caused) catastrophic injury to a man who was handcuffed with plastic ties to his hands and kicked off the side of a cliff, tumbling to the dry creek bed below.”
Mr Dawson told the court Mr Roberts-Smith then either shot or ordered an Afghan National Army officer to shoot Mr Jan “to put him out of his misery, or to make sure he didn’t live to tell the tale.”
Mr Roberts-Smith, who reported an “enemy killed in action” over the radio, insists that Mr Jan was a Taliban spotter who was a legitimate target.
But Mr Dawson told the court a radio was planted on Mr Jan’s body, which was dumped next to a corn field as part of a cover up.
The court heard the Australian Federal Police is also investigating Mr Ben Roberts-Smith over that execution allegation, but his lawyer says the incident could not have occurred as reported because that ANA officer had not been on the Darwan mission.
“And there’s no specification as to who actually pulled the trigger,” Mr McClintock said.
“They accuse my client of murder, and they have to do it with the precision of (a criminal) indictment.”
Mr McClintock added that the “enormous emotional strain upon my client is compounded” by the new allegations.
Meanwhile, the federal Attorney-General has invoked special secrecy laws to protect sensitive military information from being aired in open court.
Commonwealth lawyer Peter Melican has said some of the material Nine intended to use in its application to amend its defence may raise national security issues.
Justice Anthony Besanko has reserved his decision.