‘Event of startling gravity’: Newspapers back SAS soldier’s account of execution

The newspapers defending Ben Roberts-Smith’s high-stakes defamation appeal have told a court an elite soldier who testified that the war veteran ordered an unlawful execution with the words “shoot him, or I will” could hardly have misremembered an event of such “startling gravity”.

Roberts-Smith is seeking to overturn a landmark decision by Federal Court Justice Anthony Besanko last year which dismissed his multimillion-dollar defamation case against The Age and The Sydney Morning Herald and found he was complicit in the murder of four unarmed Afghan prisoners.

Ben Roberts-Smith outside the Federal Court in Sydney in 2022.Credit: Kate Geraghty

Besanko found the newspapers had proven to the civil standard – on the balance of probabilities – that Roberts-Smith was involved in the murders while on deployment in Afghanistan between 2009 and 2012. This is lower than the criminal standard of beyond reasonable doubt.

Nicholas Owens, acting for The Age and The Sydney Morning Herald, told the Full Court of the Federal Court in Sydney on Thursday that a serving Special Air Service soldier, dubbed Person 14, called by the newspapers to give evidence in the defamation trial, had “stuck to his guns” when accused of lying by Roberts-Smith’s team.

He was “ultimately vindicated, and powerfully so”, Owens said, because key parts of his account that had been disputed by Roberts-Smith’s camp were found to be supported by objective evidence.

Person 14 told the Federal Court defamation trial in 2022 that he witnessed Roberts-Smith ordering the unlawful execution of an unarmed Afghan prisoner in 2012. Under the rules of engagement that bound the SAS, killing unarmed prisoners is a war crime.

According to Person 14’s account, Roberts-Smith directed an interpreter to tell an Afghan Partner Force soldier: “Tell him to shoot him, or I will.”

The direction was relayed, Person 14 told the court, and a subordinate of the Afghan Partner Force soldier shot the man dead. Roberts-Smith has denied giving any such direction.

Owens told the appeal court on Thursday that Roberts-Smith’s challenge to Person 14’s evidence “can only be a wholesale honesty attack”.

“It has to be Person 14 is just making up this account of seeing an execution because, in a way, it’s an event of such startling gravity that it’s hard to see how one could … have misremembered it in any fundamental way,” Owens said.

“That’s why we do say all of the independent corroboration that [Person 14] gets from … objective material, and in particular material that he couldn’t have known about, is powerful and important.”

Among the objective material raised by Owens included chat records pointing to a reduction in the number of prisoners around the time of the alleged execution.

Roberts-Smith’s legal team, led by high-profile silk Bret Walker, SC, has argued Besanko did not have sufficiently cogent evidence before him to justify making such grave findings against their client when he was entitled to the presumption of innocence.

Parts of the appeal are being held in closed court to hear submissions relating to national security information. The hearing continues.

Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.