WhatsApp messages reveal Nine witness’s ‘inconsistency’

Ben Roberts-Smith urges Federal Court to admit into evidence WhatsApp messages that allegedly show key witness for Nine newspapers gave an “inconsistent statement”.

Ben Roberts-Smith denies kicking an unarmed farmer off a cliff in 2012 but says he helped shoot a Taliban spotter during that raid.

A barrister acting for Ben Roberts-Smith in the war veteran’s defamation trial has urged the Federal Court to admit into evidence WhatsApp messages that allegedly show a key witness for Nine newspapers, Afghan villager Mohammed Hanifa, gave an “inconsistent statement” while under cross-examination last week.

On Monday, Arthur Moses, SC, acting for Mr Roberts-Smith, said WhatsApp messages obtained by the war veteran’s legal team suggested Mr Hanifa, who claimed he witnessed a “big soldier” kick his step-uncle Ali Jan off a cliff, was told by an Afghan official that he could “receive compensation” for Ali Jan’s death.

Last week, Mr Hanifa repeatedly denied giving false evidence during cross-examination about a September 2012 raid on Darwan, and the circumstances surrounding the alleged killing of Ali Jan, who he claims was kicked off a cliff by a big “blue-eyed” soldier and then shot dead by Australian troops behind a berry tree.

In an at times fiery cross-examination, Mr Hanifa was accused by Bruce McClintock, SC, acting for Mr Roberts-Smith, of discussing the possibility of obtaining compensation for Ali Jan’s death with the Afghan Independent Human Rights Commission.

At a case management hearing on Monday, Mr Moses told the court that WhatsApp messages from December last year indicated the Afghan Independent Human Rights Commission had “mentioned” to Mr Hanifa that “if Ali Jan is your brother or father, file your complaint” and “compensation will be provided.”

He said a representative for Nine in Afghanistan had told the media company’s legal team via Whatsapp about the alleged communication between Mr Hanifa and the Afghan Human Rights Commission.

“The HRC director tells Hanifa some compensation will be provided to affected families by Australians through the HRC in Tarin Kowt,” Mr Moses said.

“He (was) told that there were two groups against each other and one group is facing justice.”

When asked by Mr McClintock last week if he had spoken with anyone from the human rights agency about compensation for Ali Jan’s death, Mr Hanifa said: “I haven’t done that, I haven’t talked to anyone.”

In fact, Mr Moses told the court, the Afghan villager had “spoken to the Afghan Independent Human Rights Commission”, had been told that compensation “would be provided to affected families”, and was also told that “if Ali Jan was your father or your brother you could file the complaint.”

“The WhatsApp messages tend to prove that Mohammed Hanifa has made a prior inconsistent statement,” Mr Moses said. “The court should admit the WhatsApp messages.”

Nicholas Owens, SC, acting for Nine, told the court the messages were hearsay because they had not been sent by Mr Hanifa, and that Mr Moses would need to “demonstrate why a hearsay exception would apply.”

The defamation trial was adjourned on Friday and will likely resume on November 1, due to the uncertainty surrounding the Covid-19 lockdown in Sydney.

On Monday, the court heard Nine intended to call a further “24 witnesses, of whom some 19 are interstate”, while Mr Roberts-Smith may call 19 witnesses in reply.

Speaking via an interpreter from Kabul, Mr Hanifa told the court last week that he saw a “big soldier” kick a handcuffed Ali Jan off a cliff. Mr Hanifa said he saw two soldiers dragging Ali Jan behind a berry tree and then heard gunshots. When he next saw Ali Jan, he was dead.

Under cross-examination, Mr Hanifa conceded that he “hated” Australian soldiers. “If they are coming to our houses, go inside to our women, of course that’s what you call them — infidels,” Mr Hanifa said.

“You call people who are killed by infidel soldiers martyrs, don’t you?” Mr McClintock asked. “Yes, that’s it, yes,” Mr Hanifa said. “And that’s how you see them isn‘t it?” “Yes, yes,” Mr Hanifa replied.

The alleged killing of Ali Jan is the centrepiece allegation in Mr Roberts-Smiths’ action against The Sydney Morning Herald, The Age and The Canberra Times over claims that he committed or was complicit in six unlawful killings during deployments to Afghanistan.

Nine alleges Mr Roberts-Smith kicked Ali Jan off a cliff, and then agreed with a colleague – Person 11 – that Mr Jan would be shot dead. He denies the allegations and says the reports portray him as a war criminal.

Justice Anthony Besanko will make a ruling on the messages at a later date.