A top-ranking SAS soldier cannot confirm or deny whether two Afghan men shot dead were prisoners murdered by Ben Roberts-Smith and another young trooper.
The senior and still serving elite soldier was called on behalf of the Victoria Cross recipient to testify at the defamation trial launched nearly a year ago.
Continuing his evidence in the Federal Court on Thursday the witness dubbed Person 81 was asked about a mission known as Whiskey 108 in the Uruzgan province in 2009.
The captain at the time was in charge of coordinating the patrols and unmanned vehicles, interpreting the level of threat from intercepted radio chatter, and ensuring friendly fire was not received.
“You are quite busy during the mission,” Nicholas Owens SC on behalf of the newspapers asked.
“That is correct,” Person 81 said.
After bombs had destroyed large sections of the Taliban compound, Person 81 gave the order to clear it.
A report prepared after the mission stated that “two squirters” had been killed, referencing two Taliban insurgents running away from Australian troops.
He confirmed he had no personal knowledge of how those two men came to be killed.
“(Are you) unable to say one way or another whether those men were PUCd at the time of death,” Mr Owens said.
“I wouldn’t know.”
A PUC is a prisoner also known as a “person under control”.
And he could not say one way or another whether the man with a prosthetic leg was executed by Mr Roberts-Smith, as he relied on his patrol commanders to inform him of the circumstances surrounding engagements.
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.
On Thursday Mr Owens squarely asked Person 81 if he was able to say anything about their allegations of war crimes.
“Our case is that the old man and the man with the prosthetic leg were found in the tunnel (and) were PUCd,” Mr Owens said.
“And then were murdered by one or more of Person Four, Person Five and Mr Roberts-Smith without your knowledge or authorisation.”
“I’m not sure I can answer that,” Person 81 said.
“From my recollection of events I wouldn’t speculate.”
He confirmed he was told about the two engagements after the mission completed.
Under re-examination by Arthur Moses SC representing Mr Roberts-Smith, he said he did not observe any conduct by those soldiers to cause him suspicion they had murdered anybody.
The mastheads allege that Person Four was ordered to execute the other prisoner in order to “blood the rookie” to get his first kill in action, while Mr Roberts-Smith either made the command or stood by the murder.
Person 81 finished his evidence on Thursday and is among 40 who have testified over the marathon trial.
Mr Moses confirmed he was the final witness to be called by his client.
The trial continues as both sides prepare their closing addresses for Justice Anthony Besanko.
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