Soldier tells court Ben Roberts-Smith killed unarmed Afghan

Ben Roberts-Smith killed an Afghan prisoner by shooting him in the back with a machine gun and ordered the execution of another detainee, a court hears.

Ben Roberts-Smith outside court in Sydney, where a witness described his role in two alleged prisoner executions. Picture: John Grainger

Victoria Cross winner Ben Roberts-Smith killed an Afghan prisoner by shooting him in the back with a machine gun and ordered the execution of another detainee, a fellow SAS soldier has ­alleged in a dramatic day of testimony at the defamation case brought by the war hero against Nine newspapers.

The evidence is the first ­eyewitness account from any of Mr Roberts-Smith’s former brothers in arms about what occurred in the raid on a Taliban compound codenamed Whiskey 108 on Easter Sunday in 2009, where multiple suspected Taliban fighters were killed.

Mr Roberts-Smith alleges he was falsely accused of war crimes by Nine newspapers and its journalists when they reported that he was involved in six killings in Afghanistan of unarmed detainees.

The trial resumed in the Federal Court before Justice Anthony Besanko in Sydney on Wednesday after a months-long break caused by Covid-19 restrictions, and focused on evidence from a Special Air Service soldier known as Person 41, who is still serving in the SAS but in 2009 was on his first rotation in Afghanistan.

Before giving his evidence on behalf of the newspapers, Person 41 was granted a certificate protecting him against self-incrimination. The soldier told how he had been searching a room in the compound believed to have been used to make improvised explosive devices when he heard loud voices and a commotion outside in the courtyard.

He said he saw Mr Roberts-Smith and a soldier identified as Person 4 and beyond them, squatting at a wall, an older ­Afghan male.

Mr Roberts-Smith and Person 4 approached Person 41 and asked to borrow the suppressor for his M4 assault rifle.

“I thought it was a strange request,” Person 41 said, but handed the suppressor to the soldier, thinking he was going to go into the tunnel and needed it to muffle the noise in the confined space.

Ben Roberts-Smith’s parents, Len and Sue, arrive at the Supreme Court in Sydney on Wednesday. Picture: John Grainger

Person 4 fitted the suppressor to his rifle and he and Mr Roberts-Smith walked back to the Afghan, the witness said.

“I then thought to myself – I think I knew what’s about to happen here,” the witness said.

Mr Roberts-Smith grabbed the man by the scruff of his shirt, marched him a couple of metres forward till he was in front of the other soldier, the witness said. He then kicked the man behind the knees until he was kneeling down in front of Person 4.

Mr Roberts-Smith pointed to the Afghan man and said to Person 4 “Shoot him”, the witness said.

“As he said that and he stepped to the side, I didn’t wish to witness what was about to happen and I stepped back into the room.”

After stepping back inside the building, the soldier said he heard a single shot from a suppressed M4 rifle. He said he stayed in the room for about 15 seconds.

“I thought, I’ll stay out of what just happened. After a bit of time I stepped back out and I noticed Person 4 was the only one there at the time and there was a dead Afghan male at his feet.”

“I walked up to Person 4, I don’t believe anything was said. He removed the suppressor from his rifle and he gave it back to me.”

The suppressor was still warm from the shot, the witness said.

“I don’t recall Person 4 saying anything to me. He was just standing there and seemed to be in a bit of shock.”

Person 41 then fitted it back on his rifle and looked at the dead Afghan, who he could see had been shot once in the head.

Person 41 then left the courtyard and as he walked along a footpath noticed Mr Roberts-Smith had another Afghan male by the scruff of his shirt and was frog-marching him along.

“I turned to face RS to see what was happening. He then proceeded to throw the Afghan male down onto the ground; the man landed on his back. RS then reached down, grabbed him by the shoulder, flipped him over onto his stomach and then I observed him lower his machine gun and shoot approximately three to five rounds into the back of the Afghan male.”

Realising that Person 41 was watching him, Mr Roberts-Smith asked him: “Are we all cool, are we good?” To which Person 41 ­responded: “Yeah, mate, no worries.” Mr Roberts-Smith then walked back into the courtyard, the witness said.

Person 41 says he then ran into another SAS soldier known as Person 40 who asked him: “Do you know what happened to those two blokes they pulled out of the tunnel?”

Person 41 says it was the first time he realised the two Afghan men had been in the tunnel.

He says he told Person 40: “No, mate, I don’t know.”

Asked why he didn’t tell Person 40 what he had seen, the soldier said: “I just wanted to keep quiet about the whole thing, I figured it wasn’t my business … I was a new trooper, my very first trip with the SAS, I just wanted to toe the line. You just go along with whatever happens.”

Under cross examination by Mr Roberts-Smith’s barrister, Arthur Moses, SC, Person 41 agreed he had not told his superior officers what had occurred, either while he was on deployment or when he returned to Australia.

In evidence last year, Mr Roberts-Smith gave a very different account of what occurred. He agreed he had killed a Taliban fighter – who had a prosthetic leg – but said he was armed with a rifle and presented a threat. Another SAS soldier then shot a second insurgent who rounded the corner, Mr Roberts-Smith said.

He denied a claim put to him that the men had been found hiding in a tunnel under the compound and had surrendered.

The hearing continues.