SAS soldier backs Ben Roberts-Smith, denies ‘fabricating’ evidence

An SAS soldier has testified that Ben Roberts-Smith could not have executed Afghans found hiding in a tunnel for one reason.

A fifth SAS soldier has backed up Ben Roberts-Smith on a significant allegation in his defamation trial - but has been accused of fabricating evidence to protect the Victoria Cross recipient.

Mr Roberts-Smith is suing Nine newspapers over allegations, printed in 2018 articles, that he was behind the execution of six Afghan prisoners.

He denies their claims and has called soldiers from the missions, between 2009 and 2012, to testify on his behalf.

One of Nine’s central allegations is that, in 2009, the SAS stormed a Taliban base codenamed Whiskey 108 and discovered a secret tunnel.

Five SAS soldiers have told the court they watched Afghan men come out of the tunnel before they were led away by Mr Roberts-Smith’s SAS patrol and killed.

Mr Roberts-Smith denies Nine’s claims he machine gunned one Afghan and ordered a rookie trooper to shoot a second Afghan in the head.

Another five soldiers have now agreed with Mr Roberts-Smith that Nine’s story is incorrect because there were no Afghan men hiding in the tunnel.

An SAS soldier codenamed Person 38, on Wednesday, told the court he was standing a few metres from the group of Australian troops that had unearthed the tunnel.

“Did you see anyone come out of the tunnel?” Mr Roberts-Smith’s barrister asked him.

“No, I did not,” Person 38 replied.

Six SAS soldiers, including Mr Roberts-Smith, claim no Afghans were found in a tunnel, contradicting Nine’s allegation on a key point.

Person 38 said he had a “liminal” or definite memory of the tunnel discovery.

The first time Person 38 heard the allegation that two men were taken from Whiskey 108’s tunnel and executed was in the media in 2018, he told the court.

The lone soldier who went down the tunnel, Person 35, told the court the only thing stashed underground were weapon components and equipment - on Wednesday Person 38 agreed.

Person 38 also told the court, unlike many of the other witnesses, he had not been interviewed by the Inspector General of the Australian Defence Force, who conducted an inquiry into war crime allegations against the SAS.

In surprising new evidence Person 38 told the court he and a soldier, known as Person 41, ventured into an orchard outside Whiskey 108 to check for insurgents.

A senior squadmate, Person 40, had declined to help because he did not have the “courage”, Person 38 told the court.

“I was on my hands and knees with a machine gun, crouching down with a potential enemy threat in the area,” Person 38 said.

An unidentified soldier drinks from the leg at the ADF base. Picture: The Age

The evidence is significant because Person 41 told the court he was back at Whiskey 108 watching Mr Roberts-Smith execute the two men from the tunnel.

Nine’s barrister, Nicholas Owens SC, accused Person 38 of manufacturing the orchard story because it meant Person 41 would not have been able to witness the killings.

“You deliberately falsified that (orchard story) to try to assist Mr Roberts-Smith in this case,” Mr Owens said.

“Incorrect,” Person 38 said.

Person 38 said he had told people the orchard story before, but left it out of his court documents.

He denied it was to help the men in Mr Roberts-Smith’s patrol because they were his friends and now business associates.

“The story is the truth and I don’t know about the allegations you’re talking about,” Person 38 told Mr Owens.

Originally published as SAS soldier backs Ben Roberts-Smith, denies ‘fabricating’ evidence