Amid allegations of war crimes, of murder, and of domestic violence, the seemingly inconsequential but bizarre death of a dog has dominated days of evidence in the Ben Roberts-Smith defamation trial.
It has done so because the identity of an Afghan special forces member who shot the stray dog – accidentally injuring an Australian soldier – during an SAS mission in July 2012 could prove critical in an allegation of murder made against Roberts-Smith in the newspapers’ defence.
Roberts-Smith and two of his first soldier witnesses – Person 35 and Person 27 – have each now conceded before court they were wrong in their written outlines of evidence that a particular Afghan soldier – known as Person 12 – was responsible for firing on the dog and was subsequently banned from patrolling with the Australians.
The evidence over the dog is potentially critical because the newspapers allege that Person 12 was present during a later Australian mission to Khaz Uruzgan in October 2012, and that Roberts-Smith ordered him to command one of his subordinates to kill a prisoner. Roberts-Smith told the court the allegation cannot be true because Person 12 wasn’t there.
Person 27 told the court Tuesday morning he “never had direct knowledge” of who had shot the dog and that the first time he had heard the name of person 12 was during a meeting with Roberts-Smith’s lawyers. He told the court “Ben’s lawyers” wrote Person 12’s name in an outline of his proposed evidence which he was sent to check before it was submitted to the court.
In total, five soldier witnesses – Ben Roberts-Smith and four witnesses he has called – submitted outlines of evidence that said Person 12 shot the dog dead.
But coalition force documents presented before the court show that Person 12 was not on the mission that day – he was not even attached to the Australian forces when the incident with the dog occurred – leading to allegations from the newspapers Roberts-Smith and his witnesses colluded to give untruthful evidence.
They have denied any complicity or collaboration.
Roberts-Smith, a recipient of the Victoria Cross and one of Australia’s most decorated soldiers, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports he alleges portray him as committing war crimes, including murder.
The newspapers are pleading a defence of truth. Roberts-Smith denies all wrongdoing.
The court has heard that in July 2012, Australian SAS were on a mission in Chenartu, in southern Afghanistan, with members of the Afghan police special forces unit, known as the Wakunish. On patrol, a Wakunish member opened fire on a stray dog, killing it. Shrapnel from the shooting ricocheted, hitting and injuring an Australian SAS soldier.
In his outline of evidence, Roberts-Smith told the court he had understood it was Person 12 who had shot the dog and that he was then removed from going on patrols with Australian soldiers.
Roberts-Smith said the allegation cannot be true, because Person 12 was not on the mission, having been removed over the dog incident.
The newspapers allege that towards the end of the Khaz Uruzgan mission, an Afghan prisoner who had been detained was being questioned by Roberts-Smith’s patrol through an interpreter. Also present were Wakunish members, including their commanding officer, Person 12.
During the interrogation of the prisoner, a member of Roberts-Smith’s patrol kicked at a discoloured area of the compound’s mud wall that appeared to be a recently constructed false wall.
From behind the false wall fell a cache of weapons, including rocket-propelled grenades.
According to the newspapers’ defence documents, Roberts-Smith saw the weapons fall out and told the interpreter to order Person 12 to shoot the prisoner: “Shoot him or get his men to do it, or I’ll do it,” Roberts-Smith allegedly said.
Person 12 allegedly instructed one of his subordinates to shoot the prisoner, who fired four to six shots into him, killing him. Other Australian soldiers have given evidence before the trial that they witnessed Roberts-Smith order the execution.
Roberts-Smith has consistently denied the allegation he ordered the execution.
He told the court there were no prisoners in the final compound at Khaz Uruzgan, and that Person 12 was not on the mission.
“Did you order [the interpreter] to translate an order to Person 12 to kill a PUC?” he was asked by his barrister.
“No, I did not … I never killed an unarmed prisoner.”
Roberts-Smith has called three soldier witnesses in this trial, two of whom have submitted outlines of evidence that state Person 12 shot the dog.
Person 35, shown evidence that Person 12 was not present the day the dog was shot, told the court “I must have misremembered … I’ve remembered incorrectly.”
Nick Owens SC, acting for the newspapers, put it to him he had colluded with other soldier witnesses.
“You discussed with each of those people the lie that you were going to tell about Person 12 shooting a dog, correct?” Owens said.
“That’s incorrect,” Person 35 replied.
Another soldier, Person 27, told the court, “I never had direct knowledge of who shot the dog.” He said he was told Person 12’s name by Roberts-Smith’s lawyers, and they had written Person 12’s name in his outline of evidence.
Owens asked Person 27: “When is the first time that you can recall anybody telling you that Person 12 was the person who shot the dog and injured Person 57?”
“When I met with Ben’s lawyers,” Person 27 said.
Asked who had first used the name of Person 12, Person 27 said: “Ben’s lawyers.”
He told the court after a teleconference with Roberts-Smith’s lawyers he was sent an outline of his proposed evidence before the court “which I was to correct”.
Person 27 said he was unsure that Person 12 had been responsible for shooting the dog, and rang the soldier who was injured by the shrapnel that day. Person 27 was told it was not Person 12, but another Afghan national, however he did not change his outline of evidence, despite knowing it was wrong.
Roberts-Smith himself had initially claimed he knew it was Person 12 who shot the dog.
“I did not see Person 12, nor do I recall seeing the interpreter … during the mission,” Roberts-Smith told the court in his outline of evidence.
“Person 12 was not present, as it was my understanding that Person 12 had been stood down [over the dog incident] well before this time.”
In the witness box last year, Roberts-Smith told the court he later came to learn that it was not Person 12 who had been stood down for shooting the dog, but maintained the Afghan officer was not on the Khaz Uruzgan mission: “One way or another, Person 12 wasn’t there,” Roberts-Smith said.
During a debate over access to documents last month, Owens told the court it was “utterly inconceivable that five people would make the same, precise, demonstrably false error” by innocent coincidence, and that the erroneous evidence represented a “fraud”.
“The fraud is the collusion between witnesses … multiple witnesses colluding together in relation to the evidence they will give at trial.”
Roberts-Smith’s legal team has denied the allegations of witness collusion.
The case, before Justice Anthony Besanko, continues.
