Curious incident of the dog in the daytime chews time in Ben Roberts-Smith case

The arcane question of which Afghan soldier shot a dog in 2012 has been so thoroughly traversed in Ben Roberts-Smith’s defamation case against Nine newspapers that its particulars are elongating this already complex matter into something that resembles a string of uncooked sausages.

It’s worth explaining this in full because the upshot could discredit Roberts-Smith’s witnesses or, in the worst case, potentially implicate his legal team in colluding to provide a false alibi.

Correspondence between Ben Roberts-Smith’s legal team and witnesses has been produced under subpoena.Credit: Flavio Brancaleone

Let’s call it the curious incident of the dog in the daytime.

On July 31, 2012, a group of Australian soldiers and their Afghan partners were questioning locals in the Chora Valley while a large hound barked on a chain nearby. One of the Afghan soldiers turned around and shot the dog and the bullet ricocheted off the ground and into the leg of an Australian team commander who was coming through the doorway.

The Afghan soldier was later removed from the patrol.

Four witnesses for Roberts-Smith have sworn in their written outlines of evidence that the soldier in question was an individual known as Person 12, the most senior Afghan assigned to the patrol for that rotation.

Nicholas Owens, SC, the barrister acting for the media.Credit: Edwina Pickles

Person 35 told the court last week that he was present during the shooting and among three senior officers who determined afterwards that Person 12 should be removed from the patrol. Under cross-examination by Nicholas Owens, SC, the barrister for the newspapers, Person 35 doubled and tripled down on his recollections. He had known Person 12 well, he said. They had trained together and had been out on a handful of jobs.

He would never mistake him for another soldier, Person 35 said under oath.

But then Owens asked Justice Anthony Besanko if he could continue his cross-examination in closed court, leaving a vacuum that could only be filled by the imagination. When the doors were thrown open again, the soldier stated that he had been mistaken and it was not Person 12 who shot the dog after all.

The reason this was significant is that the newspapers have alleged that Roberts-Smith directed Person 12, via an interpreter, to ask one of his men to kill an unarmed prisoner at Khas Oruzgan in October 2012. Under the rules of engagement, this is considered murder. It was originally Roberts-Smith’s case that he could never have done so because Person 12 was not on the relevant mission, having been kicked out of the patrol following the dog incident. Roberts-Smith did not include that in his final pleadings, but four of his supporters maintained in their written submissions that the dog incident involved Person 12.

One of Ben Roberts-Smith’s barristers, Arthur Moses, SC.Credit: Rhett Wyman

The newspapers allege that for five soldiers to come up with an identical false story is clear evidence of collusion and they have been trying since early April to subpoena the documents related to the preparation of the witnesses’ written outlines of evidence. The court has denied the request on the basis that communications between lawyers and their clients are privileged unless there is clear evidence to suggest a fraud perpetrated on the court.

Roberts-Smith’s legal team has claimed that the allegation of collusion is a fanciful explanation for mistaken recollection and accused the newspapers of “throwing allegations around like confetti”.

However, when a second soldier, Person 27, who had also identified Person 12 in his outline of evidence, gave evidence on Tuesday morning, it fell from his lips that the first people to raise Person 12’s name in association with the dog shooting were in fact Roberts-Smith’s lawyers.

At that point, Justice Anthony Besanko ruled that the threshold had been crossed for lawyer-client privilege to be waived. Roberts-Smith’s lawyer agreed to hand over the documents used to prepare the witness statements.

These documents showed several iterations of the statement drafted for Person 27 by Roberts-Smith’s solicitors and his communications with them during the process. He told the court he had not been present during the incident and had never met Person 12. After a statement was drafted for him that named Person 12 as the shooter, he checked with the soldier who had been wounded and realised this was false. But he says he did not then change his statement because he had not realised it would be the final version submitted to the court.

This arcane avenue of questioning has days yet to run and the two other soldiers who named Person 12 as the dog shooter are yet to testify. It will be interesting to see how they tell their story.

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