SAS hero accused in Afghan war ‘murders’

Ben Roberts-Smith accused of ordering murders of two Afghan prisoners in fresh string of war crime allegations.

SAS Victoria Cross recipient Ben Roberts-Smith is suing Nine Network newspapers over war crime accusations.

Australia’s most decorated living soldier, Ben Roberts-Smith, has been accused of ordering the murders of two Afghan prisoners as part of a fresh string of war crime allegations levelled at the Victoria Cross recipient.

But in a dramatic day of evidence in the Federal Court, The Sydney Morning Herald and The Age, both of which are being sued by Mr Roberts-Smith for defamation, were accused of “major errors” in their reporting of Mr Roberts-Smith’s alleged crimes.

Lawyers for the newspapers, owned by Nine Entertainment, changed their claim that Mr Roberts-Smith ordered two Afghans to murder a prisoner, Ali Jan, saying instead that either he himself or a colleague fired the fatal shot.

Nine also told the court it would argue that Mr Roberts-Smith had ordered the execution of two prisoners during missions to the Afghan villages of Sola and Syahchow in 2012. Nine now claims Mr Roberts-Smith was involved in seven unlawful killings.

Sandy Dawson SC, Nine’s barrister, said that during a mission to the village of Sola in August 2012, Mr Roberts-Smith and his patrol detained an Afghan male. “A soldier in the applicant’s patrol and under his command asked for a ‘throwdown’ — that, of course, is a reference to a device such as an ICOM radio or a weapon to be able to … make the death of a civilian look like the death of an insurgent,’’ Mr Dawson said.

“The applicant directed Person 4 to shoot and kill that male, which he did. The applicant then deployed the throwdown so that it looked like … a legitimate kill.’’

During a second alleged incident, in the village of Syahchow in October 2012, Mr Roberts-Smith is alleged to have “blooded’’ a new member of his SAS patrol by ordering him to take two Afghan prisoners from a holding area into a nearby field.

“It’s alleged that (Mr Roberts-Smith) stood behind Person 66 and ordered him to shoot one of the Afghan males … and that Person 66 did so.’’

The new claims follow a series of stories by Nine Entertainment that Mr Roberts-Smith said portrayed him as a war criminal, a bully and an abuser of women.

At the centre of the litigation is the claim in 2018 that Mr Roberts-Smith kicked a bound Ali Jan off a cliff during a mission to the village of Darwan on September 11, 2012.

The newspapers originally claimed that Mr Roberts-Smith ordered two Afghan partner force members under his command, Person 13 and Person 12, to shoot Ali Jan after he had been kicked off the cliff. Mr Roberts-Smith, who denies any wrongdoing, has long maintained that neither man was actually there.

He has said that, while Person 13 was in the village on the day of the mission, he had been assigned to another patrol and was nowhere near Mr Roberts-Smith.

Mr Roberts Smith says Person 12, the man Nine originally claimed pulled the trigger, was not even in the village at the time.

Nine on Tuesday applied to amend its defence and drop any reference to either Person 12 or Person 13. Instead, Mr Dawson said Nine would allege that Ali Jan was shot either by Mr Roberts-Smith or by a second SAS operator, known as Person 11.

“It is true that the details of the particulars have changed but the allegation at its core has not,’’ Mr Dawson said.

Nine said it could produce four Afghan witnesses from Darwan who it said had seen aspects of the ¬alleged incident. Counsel for Mr Roberts-Smith, Bruce McClintock SC, opposed the amendments and took aim at what he said were “major errors’’ in Nine’s account of the incident.

He said the new allegations were nothing more than an ¬attempt by the newspapers to compensate for what he said were serious deficiencies in their original accounts of the incident. “We simply do not know the case that they’re now making,’’ Mr McClintock said, referring to Nine’s proposed changes.

Mr McClintock said Mr Roberts-Smith had lived with the spectre of what he maintained were false allegations for two years, a fact that had taken a considerable toll.

“Yes, he’s won a Victoria Cross. Yes, he’s a soldier. Yes, he saw a considerable amount of action. Yes, there can be no question about his courage,’’ Mr McClintock said. “But he’s still a human being, your honour, and to confront allegations like this put forward by a large and powerful media organisation in circumstances where it turns out that what they actually said in the articles is insupportable — and now they want to change position.’’

Mr McClintock also accused Nine of a second error relating to the date of an alleged incident in which Mr Roberts-Smith is ¬accused of taking a number of Afghans off a Hilux and then boasting about having shot one. Originally, the newspapers said the incident had occurred on or about October 21, 2012.

In response, Mr Roberts-Smith said he was on another mission at the time, for which he received an official commendation. The newspapers on Tuesday applied to have the date of the incident moved to November 5.

Mr McClintock said this fact was known to one of the authors of the article, Chris Masters, who referred to the operation in which Mr Roberts-Smith received the commendation in his book about the Afghan conflict. “Where is Mr Masters to explain how, in his defence, an allegation that he must have known was false, appears?’’ Mr McClintock said.

The new allegations about Sola and Syahchow had only emerged because the newspapers had been forced to concede “major errors” in their earlier accounts, he said. Justice Anthony Besanko will rule on the amended defence at a later date.