Second Afghan tells Roberts-Smith trial ‘big soldier’ hit him
A second Afghan witness has told the Ben Roberts-Smith defamation trial that a “big soldier” hit him during an interrogation in 2012.
A second Afghan villager has described in the Ben Roberts-Smith defamation trial how he had been hit by “a big soldier” on the day in September 2012 than a man named 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.
This follows evidence by Afghan villager 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, who Nine newspapers alleges was unlawfully killed in Darwan in central Afghanistan.
The Federal Court heard on Wednesday that the trial is likely to be delayed until November 1 by Covid-19 lockdowns, with interstate witnesses being required to quarantine in Sydney.
Meanwhile, Mr Roberts-Smith’s lawyer claimed, the war hero was being used as “human piñata” by Nine newspapers, who he is suing.
A case management meeting between trial judge Anthony Besanko and lawyers representing the ex-soldier and Nine newspaper heard that the trial “cannot continue dragging on” despite Covid restrictions.
Mr Roberts-Smith’s lawyer, Arthur Moses SC, told the hearing that “we need to get on with this. My client … is being used as human piñata”.
Mr Moses was referring to an article published by Nine newspapers on Tuesday which claimed Mr Roberts-Smith wore a “Crusader’s Cross” while in battle in Afghanistan.
Mr Moses told the hearing: “My client suffers prejudice every day … (he) has been subject to serious allegations thrown around like confetti for years.”
He said Nine’s allegations, which include claims about six war crimes, dated back to 2006, and had been the subject of publications since 2018 and “they continue publishing articles as late as yesterday”.
Justice Besanko agreed both with Mr Moses and Nicholas Owens, SC, that the trial could not be relocated away from Sydney and that witnesses, such as SAS soldiers, could not testify via video link.
The trial has heard three days of testimony from the Afghan witnesses.
On Wednesday morning, Mr Hanifa was cross-examined by Mr Roberts-Smith’s lawyer, Bruce McClintock, SC.
He is Nine Newspaper’s principal Afghan witness regarding the allegation Ali Jan was an unarmed farmer kicked off a cliff on September 11, 2012 by Mr Roberts-Smith.
Mr Roberts-Smith denies kicking Ali Jan off a cliff, and says o the day in question the man killed by SAS forces was a “spotter” – a person spying on behalf of Taliban insurgents and reporting the location and other details of Australian troops to the enemy.
Mr Hanifa, who is the stepson of Ali Jan’s sister, is one of four Afghan villagers testifying against Mr Roberts-Smith in his defamation proceedings against Nine Newspapers.
He agreed that Nine newspapers, via an intermediary called Dr Sharif, had been paying for rent and food for himself, his wife and four daughters for months before his testimony.
Under heavy questioning by Mr McClintock, Mr Hanifa repeatedly denied that he had applied for compensation from the Afghan Human Rights Commission for his uncle’s death in Darwan.
He gave evidence via audiovisual link from Kabul, with a Pashto language interpreter based in Ontario, Canada, translating.
Mr McClintock: “The reason why you’ve said that Ali Jan is not a Talib is you know you won’t get compensation if he was a Talib?”.
Mr Hanifa: “He is not a Talib, he is a labourer.”
On Tuesday, Mr Hanifa told the court he regarded Australian soldiers as “infidels” and anyone they killed as a “martyr”.
He was asked by Mr McClintock: “You hate the soldiers don’t you because they’re infidels?
Smiling, Mr Hanifa responded by addressing the interpreter: “My brother you are Pashtun, I am Pashtun. If they are coming to our houses to go inside to our women, of course that’s what we call them, infidels.”
Mr McClintock: “You hate them?”
Mr Hanifa: “No, I don’t like them.”
Repeatedly accused of telling “lies” or falsehoods” by Mr McClintock, Mr Hanifa responded with a version of the same reply: “if you call it a lie that’s up to you”.
He agreed that he knew “infidel soldiers” were hunting a man, Hekmutullah, before his uncle’s death on the day in questions.
It was on that day that Mr Roberts-Smith and other SAS troops arrived in Darwan looking for a rogue Afghan army officer who had murdered three Australian soldiers the month before
Ali Jan was allegedly shot in a cornfield on the outskirts of Darwan, after Mr Roberts-Smith and fellow soldiers arrived by helicopter.
They were looking for Hekmutullah, also known as “Jungle Effect” who had shot dead Corporal Stjepan Milosevic, Sapper James Martin and Private Robert Poate.
The defamation trial resumed on Monday for just a week so that the villagers could give evidence before security in Afghanistan disintegrates with the rise of the Taliban following the withdrawal of allied troops.
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.
He has told the court that there was no cliff in the location in Darwan, but instead a creek bed with a raised side.
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The war veteran has previously told the trial: “I have never shot an unarmed man”.
On Monday, Nine Newspapers’ barrister Nicholas Owens SC repeatedly asked Mohammed Hanifa to identify an embankment or slope in the creek in the middle of Darwan.
Mr Hanifa could not.
The Afghan villager has alleged that a “big soldier with blue eyes” repeatedly beat him and then kicked his uncle.
Describing how “the big soldier” allegedly punched, kicked and pushed him, Mohammed Hanifa said the soldier had at first kicked his uncle Ali Jan “really hard”.
“The big soldier he came, he said something to him and Ali Jan smiled and then he kicked him really hard and fell on his back.
“At this time I really got scared.”
Mr Hanifa said Ali Jan’s “hands were tied in the back” and then he was “rolling down, rolling down until he reached the river.”.
However, under cross-examination by Mr McClintock, Mr Hanifa agreed that he had been blindfolded during the raid.
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.
On Wednesday, Justice Besanko agreed that “there needs to be a mechanism that provides some certainty” for the trial to proceed once the covid lockdown and border restrictions ease.
He said another case management meeting could be held in October, ahead of a presumed November 1 resumption date of the trial.