Case against Roberts-Smith has ‘more holes than Swiss cheese’

Ben Roberts-Smith’s lawyer has sensationally claimed the case against the celebrated soldier “has more holes than Swiss cheese”.

Nine‘s war crime defence against Ben Roberts-Smith’s lawsuit “has more holes than Swiss cheese” and Australian heroes have been used as “pawns” in murder allegations, the elite soldier’s legal team has told a court.

Mr Roberts-Smith’s marathon defamation trial is in its final days in Sydney’s Federal Court after years of preparation and months of evidence.

The highly decorated soldier is suing Nine newspapers over a series of 2018 articles claiming he killed six unarmed Afghans while he was deployed with the SAS.

He strenuously denies their claims, Nine insists they’re true.

Both legal teams are now tying the evidence together in closing addresses designed to convince Justice Anthony Besanko to rule in their favour on the internationally significant trial.

One of Nine’s central allegations is that Mr Roberts-Smith was involved in two executions within minutes during a raid on a Taliban compound on Easter Sunday, 2009.

The compound, known as Whiskey 108, was concealing an unusual tunnel beneath it, the court has heard.

SAS photographs showing weapons seized during the raid on Whiskey 108.

Nine claims two men emerged from the tunnel - one with a fake leg, the other elderly - and the SAS detained both.

The newspapers claim Mr Roberts-Smith instructed a junior soldier, known as Person 4, to borrow a rifle suppressor off another SAS soldier to shoot the elderly Afghan in the head inside the compound.

The newspapers, and some SAS witnesses, further claim Mr Roberts-Smith executed the Afghan with a fake leg by dragging him outside Whiskey 108 and machine gunning him with a Minimi weapon.

“What I think is that it was an exhibition execution, (Mr Roberts-Smith) wanted people to see that there‘s going to kill someone out there in front of everyone,” SAS soldier Person 24 told the court in his evidence earlier this year.

Mr Roberts-Smith in 2010, the year he was awarded the Victoria Cross for storming machine gun nests that pinned down his SAS patrol alongside Person 4, who was later awarded the Medal for Gallantry.

Mr Roberts-Smith denies anyone was found in the tunnel and insists no one was executed.

His barrister, on Monday, said Nine’s story failed to answer two glaring contradictions.

The first, the barrister said, is that the tunnel area was very busy but only one SAS witness claimed to be nearby when Person 4 allegedly executed the elderly Afghan.

“That tunnel courtyard was a confined area that had all these people in there around this time,” Mr Moses said.

“It was busier than the Rundle Street Mall on a Saturday afternoon but nobody saw this? Nobody heard it?”

SAS soldiers with the prosthetic leg from a slain Afghan, taken as a drinking trophy.

The second contradiction, Mr Moses said, was that Nine alleged Mr Roberts-Smith tried to conceal one execution with a suppressor but brazenly executed the second Afghan with an extremely loud Minimi machine gun.

“There‘s an inconsistency in (Nine’s) case which has more holes in it than Swiss cheese,” Mr Moses said.

Person 4 refused to testify about Whiskey 108 but testified, under an immunity certificate, about his alleged involvement in a second crucial raid in 2012.

Person 4 told the court he watched Mr Roberts-Smith kick a farmer off a steep drop and into a dry creek bed in the town of Darwan in September that year.

Photographs of the remote village of Darwan, Afghanistan, showing markings from a witness in the defamation trial launched by Ben Roberts-Smith. The town is the alleged cliff kick and execution site of farmer Ali Jan which Mr Roberts-Smith totally denies. Picture: Federal Court of Australia

The SAS soldier claims he and his best mate, Person 11, dragged the injured farmer across the creek before Person 11 executed him in front of Mr Roberts-Smith.

It was a murder and a cover-up, Nine claimed, that emerged after the emotionally shattered Person 4 told senior soldiers who went to the media.

Ali Jan - the farmer allegedly kicked off a cliff by Mr Roberts-Smith and executed by his men. He denies the claim but Person 4, who was on the mission, claims he saw Mr Jan's head hit a rock and it deeply affected him. Picture: Nine

The court has heard one of Nine’s central sources is a senior SAS soldier known as Person 7 who shared the cliff kick allegations, among many others.

Person 7 told the court he had serious difficulty with Mr Roberts-Smith being awarded the most prestigious commendation in the military - the Victoria Cross.

Mr Moses, on Monday, said Person 7 had used Person 4 as “a pawn” to bring down Mr Roberts-Smith.

The attempt to destroy Mr Roberts-Smith had resulted in the unstable Person 4 being cast as a murderer as well, the barrister told the court.

“(Person 4) is an Australian hero,” Mr Moses said.

“He‘s had a number of issues and difficulties, but he has been used by Person 7 as a weapon in the war that he sought to wage against Mr. Robert Smith over the Victoria Cross.”

Other witnesses, Mr Moses said, had perjured themselves and were “dripping with lies” by the time they finished testifying.

The closing arguments continue.

Originally published as Case against Roberts-Smith has ‘more holes than Swiss cheese’