Ben Roberts-Smith attempted to suborn or intimidate witnesses who were set to give evidence against him in his defamation case, made criminal allegations against another, and threatened to accuse one of murder in an attempt to coerce him into changing his testimony to a war crimes inquiry, lawyers for the newspapers he is suing have told the federal court.
In closing submissions in Roberts-Smith’s long-running defamation action against three Australian newspapers, Nicholas Owens SC, acting for the newspapers, said Roberts-Smith’s alleged efforts to “intimidate” and “threaten” soldier witnesses in the lead-up to his defamation trial, and during an inquiry by the inspector general of the Australian Defence Force into allegations of war crimes, were forceful indicators of his “consciousness of guilt”.
“He disbelieves his own case and needed to prevent other people from saying what actually happened,” Owens said.
“Efforts to suborn, intimidate or otherwise tamper with a witness are among the most forcible of presumptive indicators of consciousness of guilt.”
Roberts-Smith is suing for defamation the Age, the Sydney Morning Herald, and the Canberra Times over reports he alleges wrongly portray him as a war criminal.
The newspapers are defending their reporting as true, including allegations Roberts-Smith was complicit in six murders while deployed to Afghanistan, was a bully, and a perpetrator of domestic violence. Roberts-Smith denies any wrongdoing.
Owens told the court four soldiers, all former comrades who’d served alongside Roberts-Smith, were targeted by the Victoria Cross winner in order to prevent them from testifying against him in the defamation case, or to change their evidence to the defence force war crimes inquiry.
Owens told the court one serving SAS soldier received an anonymous letter, purportedly from “a friend of the regiment” warning him he would be accused of murder if he did not recant his evidence to the war crimes inquiry.
“You and others have worked together to spread lies and rumours to the media and the inspector general’s inquiry [into alleged war crimes],” the court heard the printed letter said.
“You have one chance to save yourself. You must approach the inquiry and admit that you have colluded with others to spread these rumours and lies.
“We are very aware of your many murderous actions over many tours in Afghanistan, including specific mission details, dates and witnesses who now are willing to expose you to the authorities so you are criminally investigated. Just like when you participated in the execution of two persons-under-control from the Taliban’s makeshift medical compound following the battle in Tizak. You know what you have done and so do we.
“Don’t ignore this because it will not go away. You will go down, better to take a reprimand than murder charges.”
During the trial, the court heard evidence from Roberts-Smith’s ex-wife Emma Roberts – who testified her then husband had told her he had written the letters, printed them off at the Channel Seven offices where he worked, and gave instructions to a retired policeman, and occasional Roberts-Smith family employee John McLeod, to post them.
McLeod also testified. He said Roberts-Smith gave him letters in sealed envelopes at a Brisbane Bunnings store with instructions on where to mail them and to whom, which he followed. He said he only realised the possible contents of the letters after a later meeting with Roberts-Smith.
When anonymous letters to the soldier were publicly revealed, McLeod said Roberts-Smith met him and urged him to take responsibility for them, as a supporter of Roberts-Smith. He says he told Roberts-Smith “fuck that you weak dog”, and has never spoken to him since.
Roberts-Smith denies any involvement in the letters. “That’s not true,” he said of the allegation he had written them and given them to McLeod to post.
Owens also told the court Roberts-Smith was behind allegations that another SAS soldier – anonymised before the court as Person 6 – had smuggled guns into Afghanistan, had a cache of weapons at his home, and was potentially preparing to massacre civilians. The allegations – written by Roberts-Smith – were relayed anonymously through McLeod to journalists, the commissioner of the Australian Federal Police, and a member of federal parliament, Owens said.
In his evidence, McLeod told the court Roberts-Smith gave him a document detailing the allegations against Person 6 and “he said that he wanted to get it investigated”.
“I created an anonymous email account, and I forwarded the information to the commissioner of the AFP.”
Person 6’s home was raided by police, but no weapons were found and no charges were ever laid.
In his evidence, Roberts-Smith told the court he gave McLeod a document containing the allegations against Person 6, but never instructed him to alert the federal police.
“I didn’t instruct him to do it. I told him if he wanted to take it to the AFP, he could do that, I’ve got no problem with that.”
On Thursday, Owens told the court Roberts-Smith met with another soldier – Person 14 – ahead of the defamation trial and urged him to say he could not remember details of a mission where Roberts-Smith is accused of ordering the murder of a captive civilian.
Owens said when Person 14 told Roberts-Smith “he would not lie on the stand and that the truth was the only thing that would protect him”, Roberts-Smith – according to his own file note tendered to the court in evidence – counselled Person 14 to say he had no recollection.
“You can’t get in trouble for perjury if you legitimately can’t remember,” Owens said Roberts-Smith’s file note recorded him telling Person 14.
Ultimately subpoenaed to testify, Person 14 gave evidence to the court that during a raid on a compound in Chenartu in 2012, he witnessed Roberts-Smith order an interpreter to pass a command to an Afghan national army officer, saying “tell him to shoot him or I will”. Person 14 said the order was obeyed: the captive man was repeatedly shot point blank.
Person 14 also testified that during a 2009 raid on a compound called Whiskey 108 he witnessed an Australian soldier, wearing Roberts-Smith’s non-standard face-paint, and bearing the distinctive weapon carried by Roberts-Smith, machine-gun a man with a prosthetic leg to death.
Roberts-Smith denies both the allegations he sought to influence Person 14’s evidence and any involvement in unlawful killings.
“I never killed an unarmed prisoner,” he told court.
Owens told court another soldier, Person 40, was approached by a superior soldier at the SAS, who told him “RS knows you’re going to be a witness in his case” and urged him to “sign a piece of paper and you won’t have to act as a witness”. If Person 40 did not avoid testifying: “RS will see you in court”, Owens said he was told.
“This can only be seen as an improper attempt to have Person 40 not appear as a witness or to change his account,” Owens said, saying Roberts-Smith feared Person 40’s expected evidence about two alleged murders at Whiskey 108 in 2009.
Roberts-Smith has consistently denied he ever sought to influence or intimidate witnesses.
Earlier this week, Roberts-Smith’s barrister Arthur Moses SC said the 43-year-old was a courageous soldier who sought neither decorations nor fame, but had a target placed on his back by his Victoria Cross, and his reputation torn down by jealous comrades, aided by credulous journalists.
Closing submissions from the newspapers are expected to conclude Friday. Roberts-Smith’s barrister will then commence their closing submissions.
The trial is expected to conclude in the middle of next week. A judgment is not expected for several months.
