A former Australian SAS soldier alleged by three newspapers to have ordered the execution of an unarmed elderly man in Afghanistan will be the first witness-in-reply called by Ben Roberts-Smith in his war crimes defamation trial.
Roberts-Smith, a recipient of the Victoria Cross, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports he alleges are defamatory and portray him as committing war crimes, including murder.
The newspapers are pleading a defence of truth. Roberts-Smith denies any wrongdoing.
A retired comrade of Roberts-Smith’s, anonymised before the court as Person 5, will be the first soldier witness called by the decorated SAS veteran on Tuesday morning.
Person 5, a former SAS patrol commander, was part of a raid on a compound known as Whiskey 108 in the village of Kakarak in Uruzgan on Easter Sunday 2009.
The alleged murders of two men – one an elderly man, the other a disabled man with a prosthetic leg – who were allegedly found hiding inside a secret tunnel in a courtyard inside the Whiskey 108 compound, are two of the key allegations made against Roberts-Smith as part of the newspapers’ defence.
In the newspapers’ defence before the federal court in Sydney, it is alleged that after the Afghan men were pulled out of the tunnel, Roberts-Smith was present when Person 5 ordered another Australian soldier – Person 4 – to execute the elderly man.
“Pursuant to that order Person 4 placed [the Afghan man] on his knees and shot him in the back of the head. Person 4 was ordered to execute [the Afghan man] so that he could be ‘blooded’,” the defence document states.
The newspapers allege Roberts-Smith “did not say or do anything to encourage Person 5 to withdraw the order or to stop Person 4 following the order”, arguing that he was complicit in, and approved of, the man’s murder.
The court has also heard previous evidence about premeditation. One soldier witness, known as Person 24, told the court that hours before the Whiskey 108 assault, he saw Person 5 in the SAS headquarters.
“Person 5 came to the doorway of our patrol room and he was in a jovial manner, dancing a bit of a jig,” Person 24 said.
“He said that we are going to ‘blood the rookie’.”
Person 24 said he understood the phrase to mean “they were going to facilitate or put [Person 4] … in a position where he could get a kill under his name”.
Person 4 has already given evidence in this trial, spending five days in the witness box.
But Person 4 refused to answer questions about his actions at Whiskey 108: “I object on grounds of self-incrimination,” he told the court.
After intense legal debate, Justice Anthony Besanko ruled he should not be compelled to respond.
Another SAS soldier, Person 41, has given a slightly differing account of the alleged murder of the elderly Afghan man, alleging it was Roberts-Smith who gave the order he be executed.
Person 41 told the court: “RS [Roberts-Smith] walked down and grabbed the Afghan male by the scruff of his shirt.”
He said Roberts-Smith walked the man about 2 metres until he was in front of Person 4, “then kicked him in the back of the legs behind the knees until he was kneeling down … RS pointed to the Afghan and said to Person 4 ‘shoot him’.”
Person 41 said he did not want to witness what he realised was about to occur, and stepped back into a room off to the side of the compound. He said he heard a muffled round fired from an M4 rifle before waiting another “15 or so seconds” and stepping back into the courtyard.
He said Roberts-Smith was no longer in the courtyard, but Person 4 was standing above the Afghan male, who was dead from a single bullet wound to the head.
Under cross-examination, Person 41 was questioned why he hadn’t reported what he’d seen to his commanders.
“I just wanted to keep quiet about the whole thing,” he told the court. “I was a new trooper, on my very first trip with the SAS, I just wanted to toe the line. It’s the unwritten rule – you go along with whatever happens.”
On another day in the hearing, Person 41 was also queried about antipathy towards Roberts-Smith within the SAS. He agreed there were “haters” within the regiment, jealous of his decorations.
In his testimony, Roberts-Smith maintains the execution could not have happened because there were no people discovered in the hidden tunnel in the compound courtyard.
Four times during his evidence-in-chief and cross-examination he told the court “there were no men in the tunnel” or “there were no people in the tunnel”.
He said testimony that men were pulled from the tunnel was “completely false”.
A year after the Whiskey 108 raid, Person 5 served alongside Roberts-Smith at the battle of Tizak, for which Roberts-Smith was decorated with the Victoria Cross. Person 5 was awarded the Star of Gallantry for his actions in that battle.
Within the SAS regiment, that battle is legendary, but also controversial. The court has heard that the regiment, at that time, was a “toxic” environment, beset by factionalism and feuding, and riven by internecine fighting over decorations.
A serving SAS noncommissioned officer, Person 7, told the court Person 5 “bullied” his subordinate soldiers to write letters in support of Roberts-Smith’s VC commendation from Tizak, which, he argued, effectively stole credit from others.
Person 7 said Roberts-Smith’s formal VC citation contained “lies and embellishments”, and described Person 5 as a “blustery” and “obnoxious” character.
In earlier cross-examination Arthur Moses SC, acting for Roberts-Smith, put it to Person 7 he had engaged in “character-assassination” of Roberts-Smith and was “consumed by hatred” for the VC winner.
“I don’t hate RS whatever,” Person 7 said. “Everything I said was based on personal experience I’d had with him.”
Last Thursday, the newspapers being sued closed their case, with a final soldier witness spending a morning under cross-examination in closed court. Eighteen soldier witnesses, three civilians and three Afghan nationals appeared as part of the newspapers’ case, most of them under subpoena.
Roberts-Smith has listed up to 30 potential witnesses-in-reply, but he is expected to call about half that number. Their evidence is likely to take a month.
Roberts-Smith himself can also take the stand again, but only to address allegations or issues that were not raised during his first 11 days giving evidence.
