Bombshell as witness slips up in Ben Roberts-Smith trial
A witness in the Ben Roberts-Smith trial has insisted the “big soldier” gave him instructions in Pashto, which the soldier does not speak.
An Afghan witness appears to have made a slip-up, claiming in the Ben Roberts-Smith defamation trial that a “big soldier” gave him instructions in Pashto, which Mr Roberts-Smith does not speak.
The final witness testifying from Kabul, Shahzad Aka, made the assertion under questioning from both sides in the trial, by Nine Newspapers’ lawyer and Mr Roberts-Smith’s.
He told the trial that the “big soldier” had come and had “a conversation” with him and others as they waited in a hut in Darwan after a raid by Australian SAS soldiers on September 11, 2012.
“That soldier told us you should not move until our plane comes … lands and we go back,” he said.
“This was said to us in Pashto language. Yes, we were told in Pashto, the conversation with us in Pashto.”
On June 19 this year, Mr Roberts-Smith testified that he didn’t speak the Pashto language. The trial has heard an interpreter accompanied to soldiers to translate commands to Afghan villagers.
Mr Roberts-Smith said like all SAS soldiers he used “during an assault, very basic words, ‘stop’, ‘get down’ and ‘put your hands up’,” when telling a PUC (person under control) what to do.
Mr Shahzad told the Federal Court hearing on Friday afternoon: “The big soldier came towards me.
“The other soldiers were sitting there, but only the big soldier came to me and (another villager).
“The soldier said until our planes come none of you shall move.”
Mr Shahzad said the big soldier had told him not to move until the soldiers had flown off and left the village.
“The soldier said when we get in the plane you can move. The big soldier got into the plane,” Mr Shahzad said.
Accused by Mr Roberts-Smith’s lawyer, Bruce McClintock SC, of making that up, Mr Shahzad said: “I have not made it up.”
Under re-examination by Nine’s barrister Nicholas Owens SC, Mr Shahzad was asked specifically: “Did the Pashto (language) come out of the big soldier’s mouth?”
He replied: “Yes, the big soldier talked to us in Pashto.”
Under questioning by Mr McClintock, Mr Shahzad agreed he, his wife, three sons and two daughters had been having their living costs paid for by an agent of Nine Newspapers, Dr Sharif.
Mr Shahzad said that for the last year food and accommodation had been paid for after they left Darwan, and travelled to Kandahar and then to Kabul.
He and two other Afghan witnesses have been testifying this week about an allegation by Nine Newspapers that Mr Roberts-Smith kicked a man, Ali Jan, off a cliff in Darwan on the September, 2012 day in question.
Nine alleges Ali Jan was then unlawfully killed by Australian forces and that his killing was a war crime.
Mr Roberts-Smith denies the shooting was unlawful, saying soldiers killed a “spotter” – a person spying on behalf of the Taliban insurgents and reporting details of Australian troops to the enemy.
The war veteran has also denied kicking Ali Jan off the cliff in Darwan.
On Friday, Mr Shahzad said he saw soldiers handcuff Ali Jan and among the troops “there was one tall soldier with them”.
“I saw the big soldier … he made Ali Jan stand up. Other soldiers were with him but they were on the rooftops of the house,” Mr Shahzad told the court.
“I saw Ali Jan was facing the soldier and then the soldier kick him and he went down.
“He fell down to … maybe you call it a river, he fell down there.”
However, Mr Shahzad also admitted he had bad eyesight.
Under cross-examination by Mr McClintock, he agreed his eyesight “doesn’t work good” and that back in 2012 “I cannot see the ground very well”.
Under repeated accusations by Mr McClintock that he was telling lies or fabricating evidence, Mr Shahzad said: “I haven’t said one thing wrong. I haven’t made it up. I am not even telling you a single lie.”
Mr Shahzad said that after he allegedly saw the big soldier kick Ali Jan, he heard “light firing” and then went with his son and others to see the body of Ali Jan.
He said Ali Jan was lying on his back, one hand underneath, with bullet wounds to his jaw, chest and arms, where some of the flesh was missing.
Shown a photograph of Ali Jan’s body by Nine Newspapers’ barrister Mr Owens, Mr Shahzad identified it as Ali Jan, but said “they have put a wireless device on his chest”.
“The wireless device was not there,” he said. “He didn’t have a wireless device.”
Mr Shahzad is the third Afghan witness to testify via audiovisual link from Kabul.
He was preceded by his Darwan neighbour, Man Gul, who told the trial on Thursday he “hates” Australian soldiers and considers them “cruel … just like the Taliban”.
Man Gul said he found Aussies “cruel” because they “killed” or “martyred” his fellow Afghan people.
He agreed he had said that to an interpreter for Australian SAS troops while under interrogation by soldiers during an Australian SAS raid on his village.
Asked if he told the soldiers’ interpreter, “You were cruel to us and the Taliban were cruel to us,” Mr Gul replied, “Yes I said that to the interpreter”.
Under cross-examination by Mr Roberts-Smith’s barrister Mr McClintock, Mr Gul admitted that Nine’s lawyers had been paying for food, accommodation and travel expenses for his 14 family members for more than four months.
He said he had left Darwan, and gone to Kandahar, Herat and now Kabul – Afghanistan’s three largest cities – with a Nine go-between called Dr Sharif paying the expenses.
Mr Gul agreed with Mr McClintock that he regarded Australian troops as “infidels” but denied that it was permissible in his Islamic religion to tell a lie to an infidel.
Mr McClintock: “You believe the foreign soldiers … have been cruel to you repeatedly in the course of raids on your village?”
Mr Gul: “Yes they killed innocent people, they martyred them or beat them.”
Mr McClintock: “You hate them don’t you?”
Mr Gul: “Yes it is like that.”
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Asked if he agreed with the Taliban’s aim of ridding Afghanistan of foreign soldiers, Mr Gul said “I do not agree with the Taliban”.
“The Taliban has done injustices to us and the foreigners have also done injustices,” he said.
The court heard earlier that Dr Sharif had similarly paid for Mr Gul’s neighbour Mohammed Hanifa, another Nine witness, and his family.
Mr Gul also described cleaning the body of a man who had been “martyred” during a raid by Australian SAS soldiers in his village.
He said villagers in Darwan in central Afghanistan gathered together after three men were “martyred”, and then a known Taliban named Mullah Gara or Abid was killed.
He said he had followed a trail of blood and found Ali Jan “lying on his back”.
“One hand was under his body and one hand was a little bit extended,” he said.
Mr Gul, 39, indicated that Ali Jan had been shot in the right side of his jaw, the left side of his skull and in the chest.
“We cleaned his face. There was a lot of dirt on his face,” Mr Gul said.
Shown two different photographs of Ali Jan, Mr Gul recognised him in both, but laughed at the second photo in which Ali Jan’s body was lying beside a radio transmitter and a white bag.
Asked by Mr Owens for Nine Newspapers, “Did you see Ali Jan on that day carrying a radio like that?” Mr Gul began laughing.
“No,” he said, “he wouldn’t know how to work a watch not even a wireless device, even I don’t know how to work a wireless.”
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Mr McClintock questioned Mr Gul and another Afghan villager about whether Ali Jan had stayed at a man named Haji Mohammad Gul’s compound the night before the raid.
During the raid, Mr McClintock said soldiers seized weapons and 100kg of opium poppy seed from the compound and two men, Yaro Mama Faqir and Haji Nazar Gul, were later found shot dead.
Mr Gul agreed with Mr McClintock that poppy seed was cultivated for opium but denied he grew it, saying it was for farmers with “big lands”.
Nine newspapers alleges before he was killed, Ali Jan was kicked off a cliff by Mr Roberts-Smith.
The ex-soldier has denied the claim.
Mr Gul is the second Afghan villager to allege in the trial he had been hit by “a big soldier” on the day in September 2012 that Ali Jan died.
“There was a big soldier sitting beside me,” Man Gul told the court.
“I looked at him and he hit me and the interpreter said do not look at him, they do not like that.”
Mr Gul said this encounter happened while he was being interrogated about the presence of Taliban in his village and whether he had seen a murderer the SAS were seeking in regard to the execution of three Australian soldiers.
He gave evidence via audiovisual link from Kabul, with a Pashto language interpreter based in Ontario, Canada, translating.
This follows evidence by his former neighbour Mohammed Hanifa who described being repeatedly struck by a “big soldier with blue eyes”.
Both men, who are testifying against Mr Roberts-Smith from Afghan villagers via audiovisual link from Kabul, knew Ali Jan.
The defamation trial resumed so that the villagers could give evidence before security in Afghanistan disintegrates with the rise of the Taliban following the withdrawal of allied troops.
The trial has been in limbo since Sydney’s Covid-19 lockdown and is likely to be adjourned after the Afghan evidence for up to three months.
Nine also alleges Mr Roberts-Smith kicked an unarmed Ali Jan down a cliff and then ordered the man be killed.
Mr Roberts-Smith, who spent almost three weeks in the witness box, has earlier testified that he did not push Ali Jan off a cliff.
Nine Newspapers’ allegations are that Mr Roberts-Smith committed or was complicit in six war crimes from five Afghanistan missions between 2009 and 2012, and a domestic violence assault in Canberra in March 2018.
Mr Roberts-Smith has repeatedly denied all allegations, saying he was “sad” and angered by the reports which have destroyed his reputation.
He told the court he had never assaulted the woman known as Person 17, nor any woman, and that since news reports naming him had been published he felt he was looked at in the street as a woman basher.
Mr Roberts-Smith told the court he had devoted his life to fighting for his country and had done so “with honour”.
Since the Nine reports, his lawyers have told the court, his post-army career as a public speaker and anti-domestic violence advocate has evaporated.
Bruce McClintock SC told the court he would be seeking uncapped record damages for his client if they won the case.
After the Afghan villagers finish testifying, the trial is on hold again until November 1 as the current Covid-19 lockdown continues.
The majority of witnesses for Nine’s defence reside in Queensland and Western Australia which have closed borders to NSW, and Mr Owens has indicated their reluctance to quarantine.
But Mr Roberts-Smith’s lawyer Arthur Moses said they should be required to, urging the resumption of the trial and claiming Nine was using his client as “human piñata”.