‘Shoot him’: Roberts-Smith involved in killings of two Afghan detainees, SAS soldier tells court

War veteran Ben Roberts-Smith executed an Afghan detainee and directed a soldier to kill a second man during a mission on Easter Sunday in 2009, a serving Special Air Service soldier has told the Federal Court.

Giving evidence during a defamation case brought by Mr Roberts-Smith against The Age, The Sydney Morning Herald and The Canberra Times, the SAS witness known as Person 41 said he saw Mr Roberts-Smith “frog-marching” an Afghan man, throwing him to the ground and firing “three to five rounds” into his back.

Ben Roberts-Smith arrives at the Federal Court in Sydney on Wednesday.Credit: Flavio Brancaleone

Person 41 told the court Mr Roberts-Smith then turned to him during the mission on April 12, 2009, and said, “Are we all cool, we good?” and he replied, “Yeah mate, no worries.”

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 denies all wrongdoing and maintains any killings in Afghanistan were carried out lawfully in the heat of battle.

Person 41, who was called to give evidence by the newspapers, is a Special Air Service soldier who was deployed to Afghanistan in 2009 at the same time as Mr Roberts-Smith.

He told the court he was on a mission with his patrol on Easter Sunday, 2009, which involved clearing buildings in a compound dubbed Whiskey 108. Mr Roberts-Smith’s patrol also participated in the mission.

Person 41 said he saw Mr Roberts-Smith and a second soldier, Person 4, in a courtyard in the compound with a different Afghan man, who was squatting.

He said Person 4 and Mr Roberts-Smith approached him and asked to borrow the suppressor from his rifle.

“I thought it was a bit of a strange request at first, but I complied. I removed the suppressor from my M4 assault rifle and handed it to Person 4.”

Asked by the newspapers’ barrister, Nicholas Owens, SC, why he thought this was a strange request, Person 41 said: “I would have thought that Person 4 would have had his on him at the time. In my patrol at least ... you had it on you at all times.”

Mr Roberts-Smith and Person 4 began to walk back towards the Afghan man squatting against a wall, he said, and he “thought to myself, ‘I think I know what’s about to happen here.’

“RS then walked down and grabbed the Afghan male by the scruff of the shirt, picked him up, marched him a couple of metres forward [until] he was in front of Person 4. He then kicked him in the back of the legs behind the knees until he was kneeling down in front of Person 4. He pointed to the [Afghan man] ... and said to Person 4, ‘Shoot him.’”

Person 41 said he didn’t want to witness what was about to happen, and he stepped back into a room he had been inspecting.

“I heard a single suppressed shot which I knew was from an M4 rifle. I have fired thousands and thousands of rounds from an M4 with a suppressor on, and I know what it sounds like. I waited in that room for probably another 15 or so seconds.”

When he returned to the courtyard, there was a “dead Afghan male” at the feet of Person 4, he said. Person 4 returned the suppressor to him, he said, and it was still warm. “I knew it had just been used to shoot that Afghan.”

He said he witnessed Mr Roberts-Smith executing the other Afghan man shortly after Person 4 shot the man in the courtyard.

Person 41 said another soldier in his patrol, Person 40, asked him if he knew what happened to two Afghan men who had been discovered in a tunnel in the compound.

He said he claimed to have seen nothing 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”.

Under cross-examination by Mr Roberts-Smith’s barrister, Arthur Moses, SC, Person 41 agreed he did not tell his patrol commander while on deployment in 2009 about the series of events he said he had witnessed.

He also did not report the matter to the Australian Defence Force when he returned to Australia in 2009, nor did he seek an investigation.

Person 41 agreed he had “no issues” with Mr Roberts-Smith in 2009, and regarded him as a brave and good soldier.

“He was somebody you could rely upon to have your back?” Mr Moses said. “Absolutely,” he replied.

He agreed he was aware of talk among some soldiers that Mr Roberts-Smith, a Victoria Cross recipient, did not deserve awards he had received for his service in Afghanistan, but said he “put that down to the haters, so to speak”.

Person 41 agreed that under the rules of engagement soldiers were permitted to use lethal and non-lethal force against a person, “depending on the threat”, but said “you couldn’t just straight away shoot somebody if they were just being ... non-compliant, if they’re there unarmed, not really posing much of a threat”.

Mr Roberts-Smith gave evidence in June last year about the alleged events at Whiskey 108. He flatly rejected a suggestion that he had encouraged Person 4 to shoot the Afghan man in the courtyard and said the other man had posed a threat.

The media outlets allege a third SAS soldier, Person 5, had already ordered Person 4 to kill the man in the courtyard in Mr Roberts-Smith’s presence, an allegation Mr Roberts-Smith described last year as “completely false”.

The trial, which is slated to run for 10 weeks, had entered its fourth week last June when Sydney’s growing coronavirus outbreak led to the hearings being halted.

The trial resumed temporarily for a week in July to hear evidence from a group of Afghan villagers, who spoke via video link from Kabul, before it was adjourned.

The parties, witnesses and lawyers are appearing in person in court, but the courtroom is not open to the media or members of the public. There are arrangements in place for the hearings to be viewed online, in some cases after a delay.

Justice Anthony Besanko explained this morning that some of the witnesses who will be called in the trial are current or former Special Operations Command members, whose identities cannot be revealed owing to national security considerations.

Some of their evidence may also be heard in closed court sessions involving only the judge, the parties and their lawyers.

To guard against the inadvertent disclosure of national security information, the public will not have access to unrestricted livestreaming of the public parts of their evidence, but will be able to watch it later on the Federal Court’s YouTube channel.

“That recording will be made publicly available within 24 hours, or such further period as the court may allow,” Justice Besanko said.

“A limited number of representatives of recognised media organisations whose identities are known and who, by reason of their profession, owe professional and ethical obligations, will be given access to real time livestreaming, subject to appropriate undertakings.”

The trial continues on Thursday.

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