Ben Roberts-Smith kicked an unarmed and handcuffed man off a cliff, says witness

Warning: This report contains graphic content.

A former elite soldier has told the Federal Court that war veteran Ben Roberts-Smith kicked an unarmed and handcuffed man off a cliff before coaching fellow soldiers on the story they should tell about the man’s death.

Person 4, a former Special Air Service soldier, gave evidence in Mr Roberts-Smith’s defamation case on Monday that he witnessed the decorated soldier kick the cuffed man off a cliff in Darwan, Afghanistan, in 2012, causing the man to sustain a “serious facial injury” when his face hit a rock.

Former SAS soldier Ben Roberts-Smith outside the Federal Court last week.Credit: Steven Siewert

The man’s crash into the rock “knocked out a number of his teeth including his front teeth”, Person 4 said. The man had then attempted to sit up with his hands still tied but “fell back down again”. Person 4 said Mr Roberts-Smith, who was then a patrol commander, instructed him and another soldier, Person 11, to drag the man across a dry creek bed towards a large tree.

“At that point the individual was placed down. I moved off a distance. Ben Roberts-Smith and Person 11 had a quick conversation,” Person 4 said. “As I moved off and the conversation had started, I quickly turned around and the individual was standing.”

Person 4, who cannot be identified for national security reasons, said the man was still handcuffed. “A number of shots rang out ... two to three rounds,” he said.

He said that he saw Person 11 had his rifle raised in a firing position after he heard shots fired. The shots sounded like they came from an M4 assault rifle, he said, and he was “fairly certain” Person 11 had an M4. He told the court that Mr Roberts-Smith, standing nearby, had an M4.

Under the rules of engagement under which Australian troops operated in Afghanistan, which are consistent with the Geneva Conventions, a person under the control (PUC) of Australian troops cannot be killed, and to kill a person in these circumstances is murder.

Person 4 said Person 11 took photographs of the Afghan man’s body, and he saw that a radio known as an ICOM was positioned next to him. He said that to his knowledge the man had not had an ICOM.

The ICOM was “slightly wet” with a “fogged-up” screen, Person 4 said, and it “dawned on” him that he believed the radio came from another Afghan man Mr Roberts-Smith had pursued across the Helmand River before the alleged incident.

An exhibit before the Federal Court in the Ben Roberts-Smith defamation trial shows the village of Darwan.

Person 4 said that Mr Roberts-Smith said to him and two other soldiers, Persons 11 and 56, after the alleged killing, “this is what the story is”.

“It was words to the effect of, ‘the story is that we engaged a [Taliban] spotter,’” Person 4 said.

Person 4 said that the man had had a donkey with him and had been questioned by Australian soldiers with the aid of an interpreter prior to the kicking incident.

Nicholas Owens, SC, the barrister acting for the newspapers, asked Mr Roberts-Smith last year if he had heard “rumours of patrols in the SAS using throwdowns”, the alleged practice of planting weapons or objects such as radios on a body to justify a killing.

“No,” Mr Roberts-Smith replied.

Mr Roberts-Smith said he had become aware of the term “throwdowns” in the context of them allegedly “being used by other nations”.

Person 4 told the court that Mr Roberts-Smith had told him in 2012 about throwdowns, and that “we needed to carry items on our equipment to validate engagements”.

Asked if he had seen anything at the Australian soldiers’ base in Afghanistan that referenced the alleged killing in Darwan, Person 4 said he saw a drawing on a whiteboard of a “winged penis kicking an individual off a ... cliff”. He said a soldier dubbed Person 35 had a reputation for drawing winged penises.

Mr Roberts-Smith has previously told the court that the Afghan man was first seen in a field and was showing hostile intent. The decorated former soldier said last year that Person 11 spotted the Afghan man and started firing, before he fired from behind his comrade. The Afghan man had “fallen”, he said, and he believed Person 11 fired further rounds.

Mr Roberts-Smith launched defamation proceedings in 2018 against The Age, The Sydney Morning Herald and The Canberra Times over a series of articles that he says accuse him of being a war criminal, among other claims.

He denies all wrongdoing. The media outlets are seeking to rely on a defence of truth and 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 trial continues.