A former SAS soldier has denied fabricating an event never heard before in the defamation trial launched by Ben Roberts-Smith that creates an alibi for a key witness to an alleged murder.
The witness codenamed Person 38 in the Federal Court on Wednesday gave evidence about a crucial mission to a Taliban compound dubbed Whiskey 108 in Afghanistan's Uruzgan province in 2009.
After a secret tunnel was discovered the former elite soldier recalled the Victoria Cross recipient standing about three-four metres away discussing with members of his patrol about who should clear it.
"Ben's very large and Person 35 is not very large and it's better if he does it," he recalled words to the effect.
The smaller soldier then removed his armour and crawled into the opening before sticking his head back out.
"He said clear."
He confirmed "there were no fighting aged males in the compound".
Following this Person 38 - carrying a heavy machine gun - says he pushed forward into an orchard with thick foliage, and asked another soldier dubbed Person 40 to help him clear it, but he declined.
He had a "liminal memory" of this "lack of courage" shown by Person 40, given his weapon was much lighter than his, and that Person 41 joined him instead.
"To his credit," he later added.
It contradicts the evidence of other witnesses who say prisoners were found inside the tunnel at Whiskey 108.
Person 41 has previously told the court that soon after this, Mr Roberts-Smith and a young soldier asked to borrow his suppressor which he thought was strange.
He then watched the pair walk towards one of the prisoners pulled out from the tunnel, an older Afghan male, who Mr Roberts-Smith grabbed by the scruff of his shirt and forced to kneel, he said.
He then commanded the fresh trooper to "shoot him," and not wanting to watch, stepped away but heard a suppress shot fire out, he said.
Mr Roberts-Smith is suing for defamation The Age, The Sydney Morning Herald and The Canberra Times over 2018 reports claiming he committed war crimes in Afghanistan including murder, and acts of bullying and domestic violence.
The 43-year-old denies all claims of wrongdoing, while the mastheads are defending them as true.
Nichols Owens SC on behalf of the newspapers said Person 38's never-before-heard addition of the "orchard clearing" was significant.
Mr Owens accused Person 38 of changing his evidence after hearing what Person 41 had said in court.
But the witness said he was too busy to watch the daily live-streaming Youtube of the defamation trial before it was ceased, and that he barely read the news coverage to know what Person 41 had said about the mission.
"You deliberately falsified this account to try to assist Mr Roberts-Smith in this case," Mr Owens said.
"Incorrect," Person 38 replied.
Mr Owens asked why it was only first mentioned in court.
"If that had happened you would of made sure that was included in your outline of evidence," he said.
"That's not correct."
Person 38 said he believed he had spoken to other people about the orchard clearing, but could not recall who.
The trial continues.
Lifeline 13 11 14
Open Arms 1800 011 046
