An SAS soldier who refused to answer questions about an alleged unlawful killing in Afghanistan has told the federal court he felt threatened to testify by the newspapers being sued by Ben Roberts-Smith.
The soldier, anonymised before the court as Person 56, refused to answer questions about a 2012 mission to Fasil, where, it has previously been alleged, he and Roberts-Smith were responsible for the unlawful killing of two Afghan men who had been taken prisoner from a vehicle.
Person 56 has been subpoenaed to give evidence by three newspapers defending a defamation action brought by his former comrade and Victoria Cross recipient, Roberts-Smith.
Roberts-Smith alleges their media reports portrayed him as committing war crimes, including murder, as well as acts of bullying and domestic violence.
The newspapers are pleading a defence of truth. Roberts-Smith denies all wrongdoing.
Person 56 said he objected to answering questions on the Fasil mission on the grounds of self-incrimination.
His lawyer, Sean Richter, argued before court the offence to which he would incriminate himself was of “the most serious nature”.
Justice Anthony Besanko granted Person 56 a certificate under section 128 of the Evidence Act, which would protect him from his evidence being used against him in Australian courts.
But Person 56 still objected to giving the evidence and the judge did not compel him to answer.
Person 56 is the third SAS soldier to appear in this trial who has refused to give evidence – for fear of self-incrimination – over an allegation they committed murder while serving in Afghanistan.
Person 56 had previously sought to be excused from giving evidence, his lawyer citing the mental harm appearing in the witness box would cause him, compounded by his wife being ill.
Arthur Moses SC, acting for Roberts-Smith, said in court there was a “deal” struck between the lawyers for the newspapers and Person 56 that he would not be pressed to answer questions about Fasil in exchange for him testifying about another 2012 mission, to the village of Darwan, where Roberts-Smith is alleged to have kicked a handcuffed prisoner off a cliff.
“Your understanding … was that, if you did not agree to speak with the respondent’s lawyers about Darwan and help them get what they need for their case against Mr Roberts-Smith, then they would subpoena you as a hostile witness and ask you questions about other matters, including Fasil?
“Yes,” Person 56.
“And you considered that to be a threat?”
“Yes.”
In February, the court heard evidence from another Australian soldier on the Fasil mission, Person 16, who claimed Roberts-Smith boasted about shooting a captive, unarmed and handcuffed Afghan teenager who had been a passenger in a ute stopped by Australian troops.
The court heard evidence the teenager “appeared extremely nervous and trembling uncontrollably” in the custody of the Australian troops.
In their defence statement, the newspapers allege Roberts-Smith later shot the teenager with his pistol, and placed a weapon on his body to make his killing look legitimate.
Person 16 told the court that when he asked Roberts-Smith what happened “to the young fella who was shaking like a leaf”, Roberts-Smith replied: “I pulled out my 9mm, shot the cunt in the side of the head, blew his brains out. It was the most beautiful thing I’ve ever seen”.
In his evidence to the court last year, Roberts-Smith was asked about the alleged killing of the Afghan teenager at Fasil.
He said the account was “baseless”, that he never said those words, and that the event could not have happened, because he never fired his pistol in combat while on deployment in Afghanistan.
“I never had to engage with my pistol,” he told the court.
Roberts-Smith also rejected assertions that he ever engaged in the practice of using “throw-downs”, a piece of compromising equipment, such as a radio or weapon, carried by soldiers and placed on the bodies of victims as a post-facto justification for their killing.
Roberts-Smith has maintained all of his actions in Afghanistan abided with the Australian troops’ rules of engagement, and the Geneva conventions.
Also in February, the federal court heard that the newspapers believe Person 56 was responsible for killing another prisoner taken from the same vehicle during the Fasil mission.
An emailed transcript of a phone call from a lawyer for the newspapers to Person 56’s counsel was read into court: “We know that Person 56 was the other person involved in the mission in Fasil and that he was a person who killed somebody.”
“The 5 November incident is hotly contested,” the account of the phone call said. “The two people killed were killed by Ben Roberts-Smith and a member of his patrol we know to be your client [Person 56]. We think we can steer clear of all that stuff and just limit it to Darwan,” the email cited in court said.
In September 2012, Person 56 was part of the Gothic 2 patrol commanded by Roberts-Smith that conducted a raid on the village of Darwan, in Uruzgan province.
The newspapers allege in their defence that on that mission Roberts-Smith took an unarmed, handcuffed Afghan farmer, named Ali Jan, forced him to kneel near the edge of a 10-metre cliff, and kicked him off, before being involved in shooting Jan and dumping his body in a nearby field.
Person 56 said he did not witness a kick or execution but was not with Roberts-Smith for the entirety of the raid, at one stage leaving the patrol to return an interpreter to another patrol.
He told the court that after the mission, comrades in the regiment talked about an incident where “an individual had been kicked off a cliff and subsequently shot”.
Roberts-Smith denies the Darwan allegations, and has previously told the court “there was no cliff … there was no kick”, and that the man purported to be Ali Jan was an enemy “spotter” who was lawfully killed in a cornfield within the military’s rules of engagement.
Person 56 has concluded his evidence.
But late on Monday, Moses, for Roberts-Smith, told the court he would seek to have an earlier soldier witness, Person 24, recalled to the court, arguing “there is a real concern Person 24 has perjured himself and his evidence has been interfered with by another witness in the case”.
Person 24 gave evidence last month he witnessed Roberts-Smith marching a disabled man – with a prosthetic leg – out of a compound in the village of Kakarak before throwing the man to the ground and machine-gunning him to death. Person 24 described the 2009 incident as an “exhibition execution”.
The trial, before Justice Besanko, resumes Thursday.
