A senior SAS officer – Ben Roberts-Smith’s troop commander during a critical SAS mission in 2009 – has failed to back his version of events of how two men came to die at an Afghan compound codenamed Whiskey 108, telling the defamation trial he “couldn’t speculate” on the allegation that Roberts-Smith murdered one man and ordered the execution of another.
Roberts-Smith says the two men – one an elderly man, the other a disabled man with a prosthetic leg – were legitimate insurgent targets, lawfully killed. The three newspapers he is suing say as part of their defence that the unarmed men surrendered after being discovered in a tunnel inside the compound but were then murdered.
Roberts-Smith, a Victoria Cross winner, is suing the Sydney Morning Herald, the Age and the Canberra Times over reports he alleges defame him as a war criminal and murderer. He denies any wrongdoing. The newspapers are defending their reporting as true.
Under cross-examination, the officer anonymised as Person 81, was asked to respond to the newspapers’ allegation that two Afghan males were murdered by Australian soldiers.
Nicholas Owens SC, for the newspapers, asked Person 81 for “any comment he could make” on the allegation levelled against soldiers under his command that day.
“Our case is that the old man and the man with the prosthetic leg were found in the tunnel, were Puc’ed [taken into custody] and then were murdered by one or more of Person 4, Person 5, and Mr Roberts-Smith, without your knowledge or authorisation. Are you able to say anything about that?”
“From my recollection of events, I couldn’t speculate,” Person 81 said.
Person 81 told the court: “I have read reports,” but cut short his answer, saying: “I’m not sure I can answer that.” He told the court he had heard the allegations of unlawful killings at Whiskey 108 at a “recent inquiry”.
Owens put it to Person 81: “You are unable to say one way or another whether those men were Puc’ed at the time of death?”
“I wouldn’t know,” Person 81 said. Puc is an acronym for person under control, essentially a prisoner, who cannot be harmed.
Person 81, who was subpoenaed by Roberts-Smith to testify, was asked in re-examination by Arthur Moses SC, acting for Roberts-Smith: “Did you observe any conduct by Person 4, Person 5 or Mr Roberts-Smith that caused you to have suspicion that they had Puc’ed and murdered anybody?
“No, I didn’t.”
In the newspapers’ defence documents, they allege keeping SAS officers away from the scene of potential crimes during missions was a deliberate tactic by soldiers, who then gave their superiors misinformation about what happened.
The defence documents allege that during a 2012 training exercise in Australia – subsequent to Whiskey 108 – Roberts-Smith told other soldiers: “Officers should be kept away from the compounds until we have set up the crime scene and the photos have been taken. Then once everyone is happy, that’s when the officers will be brought in and told what happened.”
Person 81, a serving senior officer in the SAS and a 25-year veteran of the military, was the final of 40 witnesses called in Roberts-Smith’s year-long defamation trial.
As troop commander he ordered SAS troops to raid and secure a compound known as Whiskey 108 in the village of Kakarak in southern Afghanistan on Easter Sunday 2009.
It is alleged by the newspapers in their defence that two men were killed after being discovered hiding in a crude hand-dug tunnel within Whiskey 108. The newspapers allege an elderly man was shot by a “rookie” trooper – Person 4 – on the orders of Roberts-Smith and his patrol commander – Person 5 – while the other man, who had a prosthetic leg, was shot to death with a machine gun by Roberts-Smith.
Roberts-Smith has denied the allegations as impossible, telling the court “there were no men in the tunnel”.
He has previously said he shot and killed the man with a prosthetic leg, whom he discovered running and armed, outside the compound. The man was an insurgent, lawfully killed within the laws of war, Roberts-Smith said.
The elderly man, according to Roberts-Smith, was killed outside the compound by another Australian soldier, unknown to him, but whom he credits with saving his life.
Person 81 told the court he heard no “engagements” – shots fired at the enemy – during the Whiskey 108 raid, and was not told of any insurgents being killed. He testified that after the SAS troops stormed and secured Whiskey 108, he entered the compound with other members of the troop headquarters.
He said he believed he saw the tunnel that was discovered by Australian troops, but he wasn’t told anybody was found inside.
“You are unable to say one way or another whether there were people in the tunnel, all you can say is you didn’t see anyone come out?,” Owens asked him in cross-examination.
“That is correct.”
Person 81’s evidence that he heard no engagements, nor was told of any insurgent deaths while at Whiskey 108, directly contradicts testimony from another key witness called by Roberts-Smith, his patrol commander Person 5.
Person 5 said during a commanders’ rendezvous meeting – known as an “RV” – where officers and patrol commanders planned their next assault, he heard gunshots outside the compound and ran out to investigate.
Person 5 told the court he discovered Roberts-Smith engaging and killing an insurgent, later discovered to be the man with the prosthetic leg.
Person 5 said he asked Roberts-Smith if he was all right: “He said ‘yep’. They just engaged two squirters to the north.”
Person 5 told the court he asked if the men were “KIA” – killed in action. When that was confirmed, he said he returned to the troop commander’s meeting.
Moses asked Person 5: “When you went back to the RV meeting, did you say anything to Person 81 or anybody else?”
Person 5: “I informed Person 81 there were two KIA on the north-west corner of the compound.”
Person 81 testified this did not happen, and he was not told of the deaths of the two men until after the mission was completed.
“Did you see any engagements in the Whiskey 108 compound after the compound was declared cleared?” Moses asked, during examination-in-chief.
Person 81: “No.”
Moses: “Do you recall hearing any engagements while you were in the compound?”
Person 81: “No.”
Moses: “Do you recall hearing reports of any engagements?”
Person 81: “No.”
The tunnel at Whiskey 108, and whether there was anybody discovered within, has emerged as a critical point of contention in Roberts-Smith’s sprawling and complex defamation action.
While it is not disputed that at least two Afghan men were killed by Australian SAS troops during their raid on Whiskey 108 on 12 April 2009, at issue is whether the men were insurgent targets legitimately killed, or whether they were prisoners who were unlawfully killed.
The argument has split the Australian SAS troops who were there: Roberts-Smith and five other soldiers have said there were no men in the tunnel. A further five have said there were men pulled from the tunnel.
An 11th soldier, Person 4, who is alleged in the newspapers’ defence to have shot dead the elderly man on Roberts-Smith’s orders, refused to testify on grounds of self-incrimination.
Even members of the same patrol have given irreconcilable evidence. Six members of one patrol subpoenaed to give evidence were split three-three over whether anybody ever came out of the tunnel.
Person 81 has concluded his evidence. The trial is likely to hear final submissions next month before Justice Anthony Besanko retires to make his decision, which could be several months away.
