Criminal probe for key Ben Roberts-Smith supporter
A key witness for Ben Roberts-Smith has revealed he is under investigation for alleged war crimes in Afghanistan, a court has heard.
In a day of explosive testimony in Ben Roberts-Smith’s defamation case, a key witness for the Victoria Cross recipient has revealed he is under investigation for alleged war crimes in Afghanistan but says the man he killed was armed and lawfully engaged under the rules of war.
“I’ve had a false allegation made against me”, the witness known as Person 35 told the Federal Court on Friday.
The killing took place during the same raid in which Mr Roberts-Smith is alleged to have kicked a handcuffed Afghan farmer named Ali Jan off a cliff during a mission in September 2012. SAS soldiers were searching a village called Darwan during the hunt for a renegade Afghan Army sergeant called Hekmatullah who two weeks earlier had killed three Australian soldiers.
An ABC report in 2018 claimed Australian soldiers took two men in the compound into a room where almonds were stored, after which shots were heard. Later that day both men were allegedly found dead.
In a heated exchange, counsel for Nine newspapers Nicholas Owens SC put to Person 35: “It concerns you because you knew that you had killed one of the two men killed in that compound, correct?”
Before Person 35 could answer, Judge Anthony Besanko asked him if he had been advised about the privileges against self-incrimination.
Person 35 agreed he had.
“Your Honour, that report is a lie,” Person 35 said. “Those two insurgents that were engaged in their compound were legally engaged, lawfully engaged under our ROE (rules of engagement), they were armed – so I don’t need a certificate for that.”
Mr Owens: “But it’s correct, isn’t it, that you killed one of the men?”
Person 35: “I had a lawful engagement in that compound, Mr Owens, yes.”
Mr Owens: “You agreed that you in fact killed one of those two men?”
Person 35: “I did.”
Mr Owens: “And it’s correct, isn’t it, that Person 32 killed the other man in the compound?”
Person 35: “That’s correct.”
Though he was not at the location where Mr Roberts-Smith was alleged to have kicked the detainee off the cliff, Person 35 said he did not believe it had happened. “How do you know?” Mr Owen asked.
“Because I know my friend Ben, and I know he wouldn’t do that,” Person 35 replied.
Person 35 has previously given crucial evidence in Mr Roberts-Smith’s case that he found no one in a tunnel he searched in a compound known as Whiskey 108 in 2009, contradicting key allegations by Nine newspapers that two unarmed men were hauled out of the tunnel and then executed.
The court has heard Mr Roberts-Smith’s employer, Seven West Media chair Kerry Stokes, is funding Person 35’s legal bills in the defamation battle trial.
Mr Owens suggested Person 35 wanted the media mogul to pay for his legal fees because he was also being investigated by the Inspector-General of the Australian Defence Force.
“Are you alleging that have I done anything wrong, Mr Owens?” he responded. “Do you have information, Mr Owens?”
The hearings will continue.
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