Roberts-Smith war crimes defamation case: ‘witness wasn’t there’
Soldier said to have been present when VC winner allegedly ordered execution was not there, trial hears.
An Afghan National Army soldier said to have been present when Victoria Cross recipient Ben Roberts-Smith allegedly ordered the execution of an unarmed civilian was not in the village when the supposed war crime occurred, a court has heard.
Lawyers for Mr Roberts-Smith told the Federal Court that one of the conspirators in the alleged 2012 murder of Ali Jan was not on the SAS-led mission to the village of Darwan on September 11, 2012 — the date when the murder is said to have taken place.
The claim, if proven, is a major blow to The Sydney Morning Herald, The Age and The Canberra Times, which are being sued by Mr Roberts-Smith over a series of 2018 articles that he claims portray him as a war criminal, a bully and an abuser of women.
At the heart of the allegations is the claim that on September 11, 2012, Mr Roberts-Smith took a bound Afghan civilian from a prisoner holding area and kicked him over a small cliff during a mission to Darwan, in Afghanistan’s Oruzgan province.
Along with four soldiers under his command, codenamed in court documents as “Person 4, Person 11, a member of the Afghan partner force, Person 12, and an interpreter, Person 13’’, Mr Roberts-Smith is then said to have walked to the bottom of the cliff and directed one of them to kill Ali Jan, which he did.
However, on Wednesday Bruce McClintock SC said one of the soldiers that the Nine newspapers claimed was present — Person 12, the Afghan National Army soldier — was not in the village.
“I might also say this … (Person 12), in fact, had been detached from the SAS at least a month before this and wasn’t actually in Darwan,’’ Mr McClintock said.
The hearing set the scene for what is likely to be one of the biggest defamation trials in decades, with both sides giving glimpses of evidence they will offer when the case goes to trial in June.
As part of its defence, Nine newspapers have alleged that Mr Roberts-Smith participated in six unlawful killings during his time as an SAS operator in Afghanistan, conduct that they say proves he was a war criminal.
Mr Roberts-Smith denies the allegations. One of those alleged killings is said to have occurred on the same day Mr Roberts-Smith allegedly kicked Ali Jan over the cliff.
According to the newspapers, it occurred earlier in the day after Mr Roberts-Smith pursued a man across the Helmand River then shot him while he was hiding in a bank of rocks. In the defence documents filed in the Federal Court, Nine newspapers said the man was unarmed and Mr Roberts-Smith could have taken him into custody.
“In these circumstances, the applicant’s conduct with respect to Afghan Male 5 constituted murder,’’ the media company said in court documents.
However, Mr Robert-Smith’s legal team said the man was a Taliban soldier who was armed with an AK-47 and foreign-made detonators of a type not before seen in that part of Afghanistan, both of which were recovered. Mr McClintock said the rifle recovered from the Taliban soldier was pierced with a bullet fired by Mr Roberts-Smith and put on display at the patrol room in Tarin Kowt. “We have photographs,’’ he said.
Mr McClintock said Mr Robert-Smith’s patrol was involved in a second shooting that day as it manoeuvred out of Darwan up a dry gully.
In that engagement, Person 11, an SAS operator, shot and killed an Afghan male as he climbed a 2m-high embankment.
Mr Roberts-Smith, who was behind him, also fired. “The man they killed had a radio,’’ Mr McClintock said. “He was a spotter. The radio establishes that.’’
Mr McClintock alluded to witnesses Nine claimed would back its version of events, saying they “saw these events occur’’.
One is understood to be an SAS operator who saw a body on the ground as he was choppered out of Darwan, although there is no suggestion he saw how the man was killed. Another is alleged to be a member of Mr Roberts-Smith’s patrol, who Nine says will claim he saw the alleged killing of Ali Jan.
A third is said to be an Afghan interpreter, codenamed Person 13, who Nine says will also attest to the shooting. Their accounts are denied by Mr Roberts-Smith and another member of the patrol, Person 11, who say nothing illegal occurred.
Nor was it clear whether Nine newspapers had actually spoken to any of its alleged witnesses, or if the patrol member or interpreter were prepared to give evidence on the media company’s behalf.
However, Sandy Dawson SC, who is acting for journalists Nick McKenzie and Chris Masters, said it was erroneous to assume the sources who informed the reporters’ stories were also the witnesses they intended to produce to back their reporting.
