VC hero Ben Roberts-Smith ‘told of war crime witness’

The AFP has told Victoria Cross recipient Ben Roberts-Smith it has ‘eyewitness accounts’ implicating him in ­alleged war crimes in Afghanistan, a court has heard.

VC recipient Ben Roberts-Smith. Picture: Toby Zerna

The Australian Federal Police has told Victoria Cross recipient Ben Roberts-Smith it has “eyewitness accounts” implicating him in ­alleged war crimes in Afghanistan, a court has heard.

The Federal Court, which is hearing a defamation suit brought by Mr Roberts-Smith against The Age and Sydney Morning Herald, heard the AFP told the Special Air Services veteran he was a suspect in war crimes that led to the death of ­Afghan villager Ali Jan in September 2012.

Counsel for the newspapers Sandy Dawson SC said the letter to Mr Roberts-Smith through his lawyer also confirmed the AFP had commenced its investigation into Mr Roberts-Smith following a referral from former chief of the Defence Force, Air Marshal Mark Binskin.

Mr Dawson said the letter referred to the incident in which the newspapers allege “Mr Roberts-Smith kicked Mr Ali Jan off a cliff while his hands were tied and then participated in a joint criminal enterprise which brought about his death”.

He said the AFP told Mr ­Roberts-Smith it had obtained “contemporaneous ADF reporting and associated documentation” in relation to the allegations.

“The AFP has conducted inquiries in Afghanistan and obtained statements from a number of current and former ADF personnel,” the barrister said.

While Mr Roberts-Smith claimed Ali Jan was a “spotter” for the Taliban, “the information in the possession of the AFP, which includes eyewitness accounts to the contrary, implicates Mr ­Roberts-Smith in the conduct which is alleged, namely the two war crimes”, Mr Dawson said.

Mr Roberts-Smith is suing the newspapers over reports that alleged he committed war crimes while serving as a soldier in Afghanistan. He vehemently denies the allegations, which he says are defamatory.

The media outlets are defending the claim, alleging the former SAS patrol leader was involved in six unlawful deaths during his time in Afghanistan.

The court heard Mr Roberts-Smith had since been interviewed by the AFP, and further information would be provided to the defendants by the AFP through the discovery process.

He said the AFP was preparing to provide about 320 documents to the defendants, after taking “a very, very narrow approach” of what material should be exempt from disclosure.

The defamation case is unfolding as the Inspector-General of the Australian Defence Force ­finalises its report into at least 55 alleged war crimes by Australian personnel during the war in ­Afghanistan.

The newspapers are seeking the release of documents from the IGADF, including a “PAP” or “potentially affected person” notice in relation to Mr Roberts-Smith. The court heard the PAP, if one had been provided to Mr Roberts-Smith, would detail allegations against him and provide him with an opportunity to ­respond.

Counsel for the IGADF, Anna Mitchelmore SC, said the Defence watchdog should be immune from producing the documents. She said information provided to the IGADF was done on the basis that submissions would be confidential, and it was yet to be decided whether the findings of the inquiry would be made public.

“The results of the inquiry may never be known to the public or may not be known to the public for some time, either in whole or in part,” she said.

Mr Dawson said Defence Minister Linda Reynolds was on record as saying that at least part of the report would be released.

Justice Craig Colvin reserved his decision on whether the documents would be released.