Finally, three years after the case was filed, the Ben Roberts-Smith defamation hearing has heard evidence about an alleged unlawful killing in Afghanistan.
Millions of dollars in legal fees have been expended to reach this point: did the Victoria Cross winner shoot a Afghan prisoner of war and order an Australian soldier to kill another one?
Up until now, opinions about the character and actions of the war hero have been sharply divided. On social media sites for former soldiers, Roberts-Smith is passionately defended on the grounds that anyone who has not been to Afghanistan and faced an enemy like the Taliban cannot possibly judge the actions of those who have.
On the other side, many service men and women vehemently condemn his alleged actions, saying that it besmirches the reputations of all Australian soldiers. There seems to be little middle ground.
Yesterday afternoon was the first time the public has heard evidence from a fellow soldier about what allegedly happened on Easter Sunday 2009, when a group of Australian patrols were asked to “clear” a compound called Whiskey 108.
A soldier known as “Person 41” gave evidence to the Federal Court in Sydney, where the Ben Roberts-Smith defamation hearing is taking place.
For security reasons, current and former members of the SAS are unable to be identified, so all the witnesses in this hearing are known by a number. Person 41 told the court that during the mission, Roberts-Smith executed an Afghan detainee and also directed a soldier to kill a second man.
He said that he saw Roberts-Smith and another soldier (known as Person 4) standing over an Afghan male, who was squatting on the ground. He said that they asked to borrow the suppressor from his rifle, took it and then returned to the man.
“RS (Roberts-Smith) then walked and grabbed the Afghan male by the scruff of the shirt, picked him up, marched him a couple of metres forward (until) he was in front of Person 4.”
The Victoria Cross winner then kicked the Afghan male to the ground and told Person 4 to “shoot him”, he said.
Person 41 said that he didn’t want to look at what was about to happen and retreated out of sight.
He heard a shot and when he returned, there was a “dead Afghan male” at the feet of Person 4, he said.
Under the rules of engagement, any combatant under the control of an Australian soldier cannot be killed and must be treated as a prisoner of war.
He said that it happened on his first trip to Afghanistan and that there was an “unwritten rule” that “you just go along with whatever happens.”
Under cross-examination, he agreed that he had not told his patrol commander about what had happened.
Roberts-Smith gave evidence about this incident during the hearing last year and rejected any suggestion that he had directed Person 4 to shoot the man.
The Victoria Cross winner has sued The Sydney Morning Herald, The Age and The Canberra Times over a series of reports which he says depicted him as a war criminal and a murderer.
There is also a separate action over a story which said that he hit his then-mistress in the face. He denies all the allegations, and the newspapers are relying on the defence of truth. About 24 current and former soldiers will be called as witnesses.
The hearing continues.
