Hotel fisticuffs, bags of cash and a witness own-goal in Ben Roberts-Smith’s court battle

It was meant to have been the week Ben Roberts-Smith launched his all-guns-blazing demolition job on claims he committed war crimes. It didn’t quite go to plan — but don’t write him off yet.

Victoria Cross recipient Ben Roberts-Smith leaves court. Picture: NCA NewsWire / Nikki Short

It was meant to have been the week Ben Roberts-Smith launched his all-guns-blazing demolition job on the claims of former SAS comrades that he committed multiple murders in Afghanistan.

Instead it ended with his closest mate in handcuffs after a night on the town celebrating the end of three days on the stand; his most important witness forced to explain why he went to a party dressed as a member of the Ku Klux Klan (answer: because someone else was coming in blackface); and yet more questions about who was paying the bills, this time in bags of cash.

Person 35 told the court he dressed as the “pathetic” KKK at a drunken party at the SAS base in 2012. Picture: The Age

Then there was the matter of Person 35, the witness with a penchant for “liking” Instagram posts that celebrated the upcoming death of the barrister about to interrogate him. That this was not the wisest move became apparent to the witness when the barrister concerned, Nicholas Owens SC, began his cross-examination on Thursday.

Owens: Person 35, you’re an active user of social media, correct?

Witness: I am.

Owens: Do you remember that one of the posts that you liked yesterday morning before court started off with this? “When some f..kwit in a suit starts questioning your integrity and using his f..ktard’s snake logic he learnt … at their nonbinarylaw school, remember one thing: that this c..t will be one of the first to be held down and drowned in a muddy puddle for his fancy jacket when society crumbles.” Do you remember liking a post that said that?

Witness: I seem to remember liking that.

Owens: Who did you understand the comment in that post to be referring to?

Witness: I have no idea.

Owens: It was me, wasn’t it?

Witness: No, sorry, I don’t follow you, why would it be you?

Owens: Who else would it be?

Witness: I don’t know.

All this before the VC recipient even begins to deal with the claims by his ex-wife that he cheated on her, and the far more damaging allegation by his former lover that he bashed her.

But don’t write off Roberts-Smith just yet.

Drunken parties at the SAS bar known as The Fat Ladies Arms in Afghanistan.

The first week in which he was able to call his own witness to rebut the claims of war crimes made by Nine newspapers certainly did not go to plan, though it started well enough. The war hero’s former patrol commander, a gruff ex-Royal Marine codenamed Person 5, stepped into the witness box and gave a detailed account of the assault on the Taliban compound known as Whiskey 108.

Critically, he rejected the evidence of several of Nine’s witnesses that two unarmed Afghans – including the now notorious “man with the prosthetic leg” – were hauled from a tunnel inside the compound and later executed. Roberts-Smith has always said the two men were armed and that they were killed outside the compound. His friend Person 5, also not a man to back away from a fight, engaged in several heated exchanges with Owens.

“You and Mr Roberts-Smith have discussed over many years, how to tell the story … to explain away war crimes, correct?” asked Owens.

“There’s been collusion – just not from our side,” the combative soldier shot back. “Your witnesses have been colluding for the last 12 years.”

Person 5’s contempt for the soldiers who have broken ranks and given evidence for the newspapers was barely contained. The 20-year SAS veteran recounted how he had asked Roberts-Smith at the compound what had happened to the prosthetic leg because it was no longer beside the man’s body.

SAS Corporal Ben Roberts-Smith VC, MG, with the Australian Special Operations Task Group, leaves a UH-60 Blackhawk helicopter in Afghanistan.

“That dickhead’s got it,” Roberts-Smith replied, according to Person 5. That was a reference to Person 6, a still-serving SAS soldier who commandeered the prosthetic leg and took it back to the base, where it became a novelty drinking vessel at the soldiers’ unofficial bar, the Fat Lady’s Arms.

Person 6 has not been called by either side but his ghostly presence has permeated the trial. He was Roberts-Smith’s arch enemy within the regiment and the person he claims rounded up disgruntled soldiers, jealous of his VC, to speak to the Nine journalists.

The Kiwi-born “tunnel rat” – Person 35 – was next in the witness box, telling how he stripped off his body armour and put on a pair of night vision goggles before crawling alone into the tunnel in the Whiskey 108 compound, armed only with a pistol. He found a large weapons cache, but there was no one hiding the tunnel, he testified.

If Nine is to defeat that evidence it will have to prove him a liar, and Owens went for the jugular, questioning his credibility over the Ku Klux Klan outfit worn to the Fat Lady’s Arms party.

“Were you reprimanded by anyone in the chain of command for dressing up in that fashion at the party?” Owens asked. “No, I actually won the fancy dress competition that night,” Person 35 replied. The punchline obscured a truth that has haunted these proceedings from day one: that no one in the chain of command ever seemed to do – or see – much of anything.

Owens asked Person 5 if he thought it was “destructive” for the newspapers to question the conduct of individual members of the military about what they did overseas.

Person 35: “I think it is, yes.”

Owens: “Why?”

Person 35: If you’re going to question a soldier on what happens overseas, then you need to question the military about what happens overseas first.”

Person 5 got a parting shot in too, just minutes before his evidence finished, when Roberts-Smith’s barrister Arthur Moses SC asked why he left the Australian Defence Force.

The soldier replied that it was because of a disparaging comment made by the head of Australian special forces in Afghanistan in 2016 while the SAS was engaged in an attempted rescue mission of a dual Australian-British national kidnapped at gunpoint from her office in the country’s east. The soldier claimed Australian Special Operations Commander Jeff Sengelman had said the woman, presumed to be charity worker Kerry Jane Wilson, was “not a real Australian anyway” when the rescue team had pleaded for more support. Sengelman has been lauded in some quarters for having initiated the first inquiries into alleged war crimes in Afghanistan after hearing rumours from soldiers.

But Person 5’s barbed response goes to the heart of a defamation case that has become a de facto war crimes trial: that the senior military officers on whose watch the alleged crimes occurred are nowhere to be seen. They do not appear on the witness lists of this case. Many of them have already been formally exonerated of any wrongdoing, though not by a court.

By week’s end, much of the ground gained by Team Roberts-Smith had been lost, as Person 35 was forced to acknowledge he too was being investigated for alleged war crimes – a murder claim he forcefully and angrily denied.

But Roberts-Smith has at least a dozen more witnesses – and likely some surprises – still to come. The biggest battle of his life isn’t over yet.