Ben Roberts-Smith was “prepared to lie under oath” in his defamation trial, evidence of his “consciousness of guilt”, lawyers for the newspapers he is suing have told the federal court, accusing him of being the “architect or the knowing beneficiary of … dishonest collusion”.
Roberts-Smith’s long-running defamation case is hearing concluding submissions, and lawyers for the newspapers, who have alleged he committed war crimes in Afghanistan while serving in the SAS, have said the Victoria Cross recipient lied, and colluded with other witnesses in an attempt to bolster his alleged untruth, in relation to matters relevant to an allegation of murder.
“Mr Roberts-Smith’s credit is seriously damaged, if not irreparably. He was willing to come to court to give false evidence,” Nicholas Owens SC, acting for the newspapers, told the court.
Roberts-Smith is suing for defamation the Age, the Sydney Morning Herald, and the Canberra Times over reports he alleges wrongly portray him as a war criminal and murderer.
The newspapers are defending their reporting as true, including allegations Roberts-Smith was complicit in six murders while deployed to Afghanistan, was a bully, and a perpetrator of domestic violence. Roberts-Smith denies any wrongdoing.
Wednesday’s submissions by lawyers for the newspapers focused on an allegation in the newspapers’ defence that Roberts-Smith was complicit in the murder of an Afghan man who had been detained in a compound in the village of Chenartu in southern Afghanistan in October 2012.
In their written defence, the newspapers allege that while the man was being interrogated by Roberts-Smith, another Australian soldier discovered a cache of weapons secreted in a cavity in a mud wall. When the cache was discovered – after the soldier kicked a discoloured piece of wall – Roberts-Smith allegedly turned to the SAS’s interpreter. Roberts-Smith allegedly pointed at an officer in the Afghan partner force – known as the Wakunish – and told the interpreter “tell him to shoot him [the detained man] or I will”.
The newspapers allege the message was passed to the Afghan officer – known in court as Person 12 – and then on to his soldiers, after which one soldier stepped forward and shot the detained man multiple times in the head, neck and chest from point-blank range.
Earlier this year, a former comrade of Roberts-Smith, anonymised before the court as Person 14, gave evidence that he discovered the cache, and witnessed Roberts-Smith’s order and the subsequent execution.
Roberts-Smith has consistently denied the allegation. During his evidence, he was asked by his barrister: “Did you order [the interpreter] to translate an order to Person 12 to kill a PUC [person under control]?”
“No, I did not … I never killed an unarmed prisoner.”
In his outline of evidence, Roberts-Smith said the version of events alleged could not have happened because Person 12, the Afghan officer alleged to have passed on the message, was not on the mission.
Roberts-Smith said Person 12 had been removed from patrols with the Australian troops because, on an earlier mission, he had shot at a mongrel dog, shrapnel from which had injured an Australian soldier.
During the trial however, Owens said Department of Defence documents showed that Person 12 was not responsible for shooting the dog and injuring the Australian soldier. Roberts-Smith conceded that error, saying “it was my understanding that Person 12 had been stood down”. But he maintained that Person 12 was not at Chenartu: “One way or another, Person 12 wasn’t there.”
Owens told the court Roberts-Smith’s credibility was compromised by what he described as his “false” assertions.
“Mr Roberts-Smith has shown himself prepared to swear false evidence in circumstances where it would achieve a direct benefit for himself in defending a serious allegation in these proceedings.
“Mr Roberts-Smith has shown himself prepared to lie under oath.”
Owens told the court: “Mr Roberts-Smith’s conduct in filing an outline of evidence and answers to interrogatories containing a false claim is conduct from which a consciousness of guilt may be inferred.”
Four soldier witnesses called by Roberts-Smith to support his case also said in their outlines of evidence that Person 12 had been removed from patrols for shooting the dog. But Owens told the court defence department documents show this was not correct.
Owens argued that it was not credible that five witnesses would independently give the same, specific false testimony, saying their testimonies demonstrated “deliberate dishonesty” and evidence of collusion.
“Mr Roberts-Smith was either the architect or the knowing beneficiary of this dishonest collusion,” Owens said.
“He was the one who stood to gain from it and, ultimately, he was the one responsible for the decision to call those witnesses to lead that evidence from them.”
“All of that is conduct from which your honour can infer a consciousness of guilt.”
Roberts-Smith, and witnesses called by him, denied collusion over their evidence. Roberts-Smith’s lawyers said the newspapers’ allegation of collusion by the witnesses was scandalous, describing the arguments before court as “completely baseless”.
Owens said, beyond the evidence of Person 14, there existed objective evidence that supported the allegation that an Afghan national was murdered.
In particular, Owens cited the real-time chat logs between the SAS troops on the ground and commanders at base. Those logs, tendered in evidence, show soldiers reporting they were planning to bring “three-to-four persons of interest” back to the Australian base, Owens said.
That number was later reduced to only two prisoners, lending weight, Owens said, to the allegation a person was murdered. He also cited alleged discrepancies in reporting over the time of alleged EKIA – enemy killed in action – as evidence of an attempt to cover up the alleged unlawful killing.
Closing submissions for the newspapers are expected to continue until late this week before Roberts-Smith’s lawyers will have the opportunity to make their closing submissions.
A judgment is not expected for several months.
