‘I know what I saw’: SAS soldier doubles down on Roberts-Smith claims

An elite soldier who has alleged war veteran Ben Roberts-Smith was involved in the execution of two Afghan detainees has denied lying about the incidents, but admitted he drank from a prosthetic leg that he was told had been taken from one of the men’s bodies.

A serving SAS soldier, known as Person 41, started giving evidence in the Federal Court in Sydney on Wednesday in Mr Roberts-Smith’s defamation case against The Age, The Sydney Morning Herald and The Canberra Times over a series of articles in 2018.

Ben Roberts-Smith arrives at the Federal Court in Sydney on Thursday.Credit: Kate Geraghty

He told the court on Wednesday that he had witnessed Mr Roberts-Smith “frog-marching” an Afghan man, throwing him to the ground and firing “three to five rounds” into his back during an SAS mission on Easter Sunday, 2009.

He said he also witnessed Mr Roberts-Smith telling another soldier, known as Person 4, to shoot a second Afghan detainee on the same day. Mr Roberts-Smith has previously given evidence denying he gave such a direction and insisting the man he killed on April 12, 2009, was armed and posed a threat.

Person 41 admitted on Thursday that he drank on numerous occasions from a prosthetic leg after he was told it had been taken from the body of the Afghan man he alleged was executed by Mr Roberts-Smith. The leg was taken back to Australia, he said.

“It’s not exactly appropriate, but in those situations it was just a bit of black humour,” Person 41 said of using the leg as a drinking vessel. “Everyone was all in it together.”

Asked by Mr Roberts-Smith’s barrister, Arthur Moses, SC, if he was ashamed of doing so, he replied: “Yes, now.”

Mr Moses said: “What, today is the first time you feel shame?”

Person 41 replied: “No. When the [news] reports started coming out, I realised that it [wasn’t appropriate]. It’s something I shouldn’t have done.”

The Age, the Herald and The Canberra Times had previously reported that members of the SAS had used an artificial limb from an Afghan man as a drinking vessel.

Person 41 said on Wednesday that he had claimed to have seen nothing when asked by another soldier what had happened to the Afghan men because “I just wanted to keep quiet about the whole thing”. It was his first trip with the SAS, he said, and there was an “unwritten rule” that “you just go along with whatever happens”.

“I know what I saw, sir.”

SAS witness, Person 41

“Did somebody tell you about this unwritten rule?” Mr Moses asked during his cross-examination on Thursday. “No, sir,” Person 41 replied.

“It’s not something Mr Roberts-Smith told you, correct?” Mr Moses pressed. “No,” Person 41 said.

He said he was “afraid that if I had’ve brought [the alleged killings] up ... I would have been seen as someone who wasn’t willing to conduct the tasks of an SAS trooper” and potentially would have been “deemed unsuitable to be operating within that troop”.

Mr Moses put it to Person 41 that the reason he didn’t report the alleged events at the time was that they “didn’t happen”.

“That’s incorrect. I know what I saw,” Person 41 replied.

“Is it the case that you think you know what you saw?” Mr Moses said. “I know what I saw, sir,” the SAS soldier said.

He denied that he had no memory of the events on the day in question and had reconstructed an account based on news stories, or had lied about specific recollections. He also denied he was lying to himself about what had happened that day because he was ashamed he did not provide backup to two other soldiers, Persons 29 and 35.

“The story that you’ve told to the court about what you say happened on the 12th of April is to assuage your feelings of guilt about the fact you were unable to cut it that day ... as a soldier, correct?” Mr Moses said.

Ben Roberts-Smith departs the Federal Court with his parents on Thursday.Credit: Janie Barrett

“That’s incorrect and I disagree,” Person 41 said.

“You’re not able to tell the difference between fact and fiction?” Mr Moses said. “Incorrect,” Person 41 replied.

Mr Moses asked if the events he claimed to have witnessed had caused him guilt.

“To a certain degree, yes,” Person 41 replied. He agreed he also felt shame, but denied that he felt like a coward.

“Not a coward, sir. I was happy just to put that in the back of my memory and carry on with the rest of my life,” Person 41 said. He would “think about it occasionally”, every few months or “a couple of times a year”.

Mr Roberts-Smith is suing for defamation over a series of reports in 2018 that he says portray him as a war criminal. The defamation trial resumed in the Federal Court in Sydney on Wednesday after a six-month break.

The Age and the Herald, which are owned by Nine, and The Canberra Times, now under separate ownership, are seeking to rely on a defence of truth. They allege Mr Roberts-Smith committed or was involved in six murders of Afghans under the control of Australian troops, when they cannot be killed under the rules of engagement.

The former SAS soldier maintains any killings in Afghanistan were carried out lawfully in the heat of battle.

Bruce McClintock, SC, one of a team of barristers acting for Mr Roberts-Smith, said during his opening address to the court last year that Mr Roberts-Smith’s reputation had been destroyed by a campaign led by “bitter people” in the Special Air Service who were “aided by credulous journalists”.

Person 41 has said he believed some SAS soldiers did harbour a dislike of Mr Roberts-Smith, but in 2009 he had considered him a good and brave soldier who could be relied upon to have his comrades’ backs.

He said on Thursday that he believed that two other soldiers, Persons 6 and 7, “may have gone to the media [about Mr Roberts-Smith]. I didn’t agree, that’s just my personal opinion.

“I didn’t agree how some people were going about their dislike for RS,” he said.

The trial continues on Friday.

The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.