Ben Roberts-Smith told other soldiers to lie about him kicking an unarmed, handcuffed Afghan man off a cliff, and “directed” them to say the man was a legitimate target discovered hiding in a cornfield, the federal court has heard.
Person 4, a former SAS soldier, is giving evidence in Roberts-Smith’s defamation trial in Sydney. He has previously told the court he saw Roberts-Smith kick the handcuffed man – who was being held at the shoulder by another Australian soldier at the edge of a steep incline – in the chest, “catapulting him” off the cliff. “I saw the individual smash his face on a rock, and I saw the teeth explode out of his face,” he told the court.
Person 4 said the Australian soldiers walked down a track to the bottom of the cliff and Roberts-Smith ordered him and another subordinate soldier to drag the man under a tree, where he was shot by the other soldier after discussion with Roberts-Smith.
Person 4, who was medically discharged from the SAS last year, has been compelled by subpoena to give evidence by three Australian newspapers which Roberts-Smith is suing for defamation over reports he alleges portray him as committing war crimes, including murder, as well as acts of bullying and domestic violence.
The newspapers – the Age, the Sydney Morning Herald and the Canberra Times – are pleading a defence of truth. Roberts-Smith denies any wrongdoing.
On Thursday, Person 4’s fourth day in the witness box, he told the trial there was a patrol debrief back at the Australians’ base in Tarin Kot, in southern Afghanistan, immediately following the raid on the village of Darwan, in September 2012.
Person 4 said Roberts-Smith, who was patrol commander, told the troops: “This is what the story is, that we engaged the individual on the way to the HLS [helicopter landing site].”
Arthur Moses SC, acting for Roberts-Smith, queried Person 4 under cross-examination: “You were being told to tell a false story?”
“We were directed to tell a false story,” Person 4 replied.
“You seem to forget he was a VC winner at this time,” Person 4 continued, “he was running his own narrative.”
“The only person running their own narrative is you,” Moses said, suggesting Person 4 had invented the conversation.
“Absolutely not.”
Person 4 said shortly after the Darwan operation, he was part of a group of SAS soldiers talking when Roberts-Smith bragged about kicking the man off the cliff.
Person 4 told the court: “He [Roberts-Smith] said words to the effect of: ‘I kicked the cunt off the cliff’.”
Person 4 said he was shocked at Roberts-Smith’s admission.
“He had just gone against what he had directed us to do.”
During an at-times heated cross-examination on Thursday, Moses repeatedly asserted Person 4 was motivated by malice or that he had fictionalised his account.
“That is incorrect,” Person 4 replied.
After repeated questions about Person 4’s reliability – “are you sure your medication isn’t impacting on your memory?” – Moses was warned by Justice Anthony Besanko that he had the power to disallow questions which were belittling or disrespectful to witnesses.
Person 4 agreed with Moses that the events in Darwan had been “manipulated” by other soldiers within a “pretty caustic” SAS regiment to try to discredit Roberts-Smith. But he said he was never involved, and felt caught in the middle of the pro- and anti-Roberts-Smith camps inside the regiment. Person 4 said he believed Roberts-Smith was a valorous soldier: “I have seen him perform heroic feats on the battlefield.”
The court has heard Person 4 and Roberts-Smith were comrades for years, and deployed together to Afghanistan several times. They fought shoulder-to-shoulder at the 13-hour battle of Tizak in 2010, together silencing two Taliban machine gunners who were raking their patrol with fire, an action that earned Roberts-Smith the Victoria Cross, and Person 4 the Medal for Gallantry.
The allegation at Darwan is one of the central allegations made against Roberts-Smith by the newspapers.
In his evidence before the court last year, Roberts-Smith said the alleged version of events could not have happened because “there was no cliff … there was no kick”, and that the slain man was an enemy “spotter” who was discovered hiding in a cornfield and lawfully killed within the military’s rules of engagement.
Over four days in the witness box, Person 4 has repeatedly refused to answer questions about a 2009 SAS mission – raiding a compound called Whiskey 108 in the village of Kakarak – on grounds of potential self-incrimination.
The court has heard evidence from another Australian soldier during this trial that Roberts-Smith ordered Person 4 to shoot an unarmed, elderly captive Afghan man discovered hiding in a tunnel during a raid on a compound in Uruzgan province in 2009. Roberts-Smith has previously described the allegation as “completely false”.
Moses extensively questioned Person 4 about an alleged deal between his legal representatives and the newspapers not to ask questions about Whiskey 108 in exchange for his testimony about Darwan.
Lawyers for the newspapers have previously argued there was no agreement, nor any improper arrangement, merely that they had made a forensic decision not to press certain questions if the witness objected.
Person 4 reiterated he was a reluctant witness, and was only giving evidence under force of subpoena. He told the court the trial – when it started last year – had been the most significant factor in causing him to be admitted to a mental health facility. He said he had been at risk of harming himself.
He said he had been told by his lawyer that there was an agreement in place with lawyers for the newspapers that their “questioning would only be focused on the Darwan matter” and not on the Whiskey 108 matter, for his “self-protection”.
“It was just trying to relieve the pressure of the courtroom for me.”
Moses asked Person 4 directly: “I want to put it to you that Mr Roberts-Smith did not order you to kill an unarmed PUC [person under control] at Whiskey 108.”
“I object, your honour, on grounds of self-incrimination,” Person 4 said.
Person 4 remains in the witness box. The trial, before Justice Besanko, continues.
