One key question in Roberts-Smith defamation ‘trial of the century’

The defamation “trial of the century” involving SAS soldier Ben Roberts-Smith can be distilled to one single question.

Nine newspapers’ final attempt to defeat a mammoth defamation lawsuit, launched by venerated SAS soldier Ben Roberts-Smith, can be distilled to one single question and one single moment in the remote and dusty hills of Afghanistan one decade ago.

How could a group of illiterate Afghan villagers, and an elite SAS soldier, all recount the same harrowing details of an alleged war crime murder if it never happened?

The Federal Court, in Sydney, is in the final stages of the defamation trial of the century between the Victoria Cross recipient and the media company.

Justice Anthony Besanko has heard evidence from dozens of SAS veterans over more than 100 days of evidence.

One soldier, known as Person 4, emerged as perhaps the most critical witness in the trial.

Person 4 refused to testify on one allegation that he executed a prisoner on Mr Roberts-Smith’s orders in 2009.

But he did testify about a mission in 2012, in the town of Darwan, where he claimed Mr Roberts-Smith kicked a detained shepherd, named Ali Jan, off a cliff.

Ali Jan – the farmer allegedly kicked off a cliff by Mr Roberts-Smith and executed by his men. Picture: Nine.

Ben Roberts-Smith is suing Nine for defamation. Picture: NCA Newswire / Gaye Gerard

Person 4 claimed he watched the handcuffed Afghan tumble down the slope, his head hitting a rock “exploding” a tooth from his mouth, before the badly injured man came to rest in a dry creek bed.

The SAS soldier claimed a third soldier, his best mate known as Person 11, then executed the Afghan while Mr Roberts-Smith watched on.

Person 4’s evidence, Nine claims, lines up with what three villagers from Darwan told the court on a videolink from Kabul.

Nine’s barrister, on Tuesday, cast the evidence from Person 4 and the Afghans as an undeniable consistency that points only to Mr Roberts-Smith’s guilt.

“(The Afghans) all spoke of being in that final compound set, seeing a tall soldier wet from the waist down, seeing someone kicked off a cliff all at the exact same time, the exact same date, in the exact same location, that Person 4 described,” Mr Owens told the court.

“There is no attempt (from Mr Roberts-Smith) to explain how it is that the evidence of Person 4, a soldier on this side of the world, could correspond so closely with the evidence of the three Afghan witnesses on the other side of the world.”

The Afghan village of Darwan, which was raided in 2012 by the SAS. Picture: Australian Federal Police

Mr Owens claimed one of the villagers correctly described the SAS’ military working dog, the number of ADF helicopters, the movements of troops, “the cliff kick” – all in line with what SAS witnesses later told the court.

The details offered up by the villagers could not be “cunningly” inserted or “manufactured” unless they were true Darwan locals and true witnesses to the raid, Mr Owens told the court.

Mr Owens’ comments come at the very end of the trial, 10 years since the SAS raid on Darwan and four years since Nine newspapers first published war crime allegations against Mr Roberts-Smith.

Those articles prompted Mr Roberts-Smith to sue for defamation – he denied every single allegation while Nine mounted a truth defence.

The newspapers ultimately claimed, in their case, that Mr Roberts-Smith either pulled the trigger or ordered his patrol mates to execute six unarmed and detained Afghan men.

Mr Roberts-Smith’s barristers, on Monday, urged Justice Besanko to see the case as an attempt to restore the good name of a war hero and a human being who has been falsely accused of murder.

“A human being who has suffered, who was once known as a hero but now, thanks to (Nine) is a man widely reviled as a murderer and an abuser of women,” barrister Matthew Richardson SC said.

The closing submissions continue.