Ben Roberts-Smith’s friends admit to error about a key point in defamation case

Two of Ben Roberts-Smith’s friends have admitted they were mistaken about a key point in the war veteran’s defamation case, with an elite soldier conceding he knew more than two years ago about a factual error in an outline of his proposed evidence.

Person 35, a former Special Air Service soldier, and Person 27, who is still serving in the SAS, have both given evidence backing Roberts-Smith in his long-running defamation case against The Age, The Sydney Morning Herald and The Canberra Times. Both men have now conceded that some of the evidence they gave in court, or that they proposed to give, was wrong.

Ben Roberts-Smith outside the Federal Court in Sydney on Tuesday.Credit: Peter Rae

Roberts-Smith is suing the newspapers over a series of articles in 2018 that he says portray him as a war criminal who was involved in the unlawful killing of Afghan prisoners. He denies all wrongdoing. The media outlets are seeking to rely on a defence of truth and allege Roberts-Smith was involved in six unlawful killings.

One of the killings alleged is that he directed an Afghan Partner Force soldier, dubbed Person 12, to get one of his subordinates to kill an unarmed prisoner in October 2012. Roberts-Smith has denied the alleged incident took place and said Person 12 was not there on the day in question.

Person 35 and Person 27 had supported Roberts-Smith and said in written outlines of their anticipated evidence, filed in the Federal Court in 2019, that Person 12 could not have been there because he had been stood down for inadvertently injuring an Australian soldier, Person 57, by shooting at a dog.

But last week, Person 35 said he “must have remembered incorrectly” when he said in court, and in his written outline of evidence, that Person 12 had been stood down.

And on Tuesday, Person 27 admitted that nobody had ever told him that Person 12 was the man who had been stood down. He had already conceded on Monday that “the identity of the person was never known to me because I wasn’t there”.

Roberts-Smith himself conceded in court on June 11 last year that, based on material produced by the Defence Department on the eve of the trial, his explanation in his written outline about Person 12 being stood down was wrong. He maintains the Afghan soldier was not there.

The newspapers have alleged the similarity in the accounts given by the men suggested there had been collusion between the witnesses in the preparation of their evidence. The witnesses have denied that allegation.

Person 27 said on Tuesday that he didn’t conduct a close review of the outline of his evidence filed in court by Roberts-Smith’s lawyers on July 12, 2019, and he didn’t think it would be the “final cut”. He said he “wasn’t happy with a lot of the wording” but he didn’t have a lawyer at the time.

He denied he was willing to tell a lie to help Roberts-Smith.

“To be honest ... I was fairly naive in thinking that outline of evidence was just an outline, and that prior to the trial I would go and re-do it,” he said. “I hadn’t signed it; I thought it would have to be a signed document. I didn’t give it much thought after 2019 at all.”

Nicholas Owens, SC, acting for the newspapers, asked Person 27: “When is the first time that you can recall anybody telling you that Person 12 was the person who shot the dog and injured Person 57?”

“When I met with Ben’s lawyers,” Person 27 said.

Asked who told him about Person 12, he said: “I don’t remember anyone saying that that happened; they asked me if I remembered the incident. They didn’t tell me who it was; they asked me if I was aware.”

Asked how he came to the understanding that it may have been Person 12 who had been stood down, he said he had a teleconference with Roberts-Smith’s lawyers and was subsequently sent a written outline of his proposed evidence in the trial, “which I was to correct”.

“It would have been discussed during that verbal, over-the-phone outline and it came back to me in writing and I said ‘I’m not sure about that; I can find out [if that’s correct about Person 12].’”

He said he had “no idea” who the Afghan soldiers were by name. Asked who had first used the name of Person 12, Person 27 said: “Ben’s lawyers.”

Person 27 said he didn’t correct the outline before it was filed in court but said he spoke to Person 57 later that year and confirmed it was another Afghan soldier who had shot at the dog.

He said that the next time he spoke to Roberts-Smith that year he said Person 57 was willing to talk to him about the soldier who accidentally shot him but “I didn’t convey what he said [about Person 12]; it had no relevance to me”. He said he didn’t say anything to Roberts-Smith or his lawyers about his outline of evidence at the time.

The trial continues.