Ben Roberts-Smith shot dead an unarmed civilian outside a compound in Afghanistan – firing his machine-gun into the back of the man lying on the ground – one of his former SAS comrades has told the federal court.
Minutes earlier, the court was told, Roberts-Smith had allegedly ordered a subordinate soldier to execute an elderly man.
In a day of extraordinary evidence, a still-serving member of the SAS gave evidence he saw the decorated soldier “frog-march” an unarmed captive Afghan man outside the compound, and throw him to the ground on his back.
“‘RS’ then reached down and grabbed him by the shoulder and flipped him onto his stomach. Then I observed him lower his machine gun and shoot approximately three to five rounds into the back of the Afghan male.”
Roberts-Smith then turned to his comrade and said “are we all cool?,” the court heard.
The SAS soldier, anonymised in the court as Person 41, was part of a raid on a compound in Uruzgan province known as Whiskey 108 on Easter Sunday 2009.
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports he alleges are defamatory and portray him as committing war crimes, including murder. The newspapers are pleading a defence of truth. Roberts Smith denies any wrongdoing.
The alleged murders of two men - one an elderly man, the other a disabled man with a prosthetic leg - who were allegedly found hiding inside a secret tunnel inside the compound, are two of the key allegations made against Roberts-Smith as part of the newspapers’ defence.
Roberts Smith has previously given evidence describing the allegation that he ordered the killing of the elderly man as “completely false” and saying that other man killed was an insurgent carrying a weapon outside the compound.
Whiskey 108 was a compound in the village of Kakarak, known as an insurgent stronghold, on the western side of the Dorafshan River, and nearby to an allied forward operating base.
On 12 April 2009, Australian troops were ‘clearing’ the compound, checking for insurgents, weapons, and bomb-making materials.
Person 41 gave evidence he was outside a walled compound when, he said, he saw Roberts-Smith “frog-marching” an Afghan man away from the compound entrance.
“He [Roberts-Smith] had his machine gun in his right arm, holding it up, and sort of frog-marching the Afghan by the scruff of the neck with his left arm.
“I turned to face ‘RS’ to see what was happening. He then proceeded to throw the Afghan male down onto the ground. The Afghan male landed on his back. ‘RS’ then reached down and grabbed him by the shoulder and flipped him onto his stomach. Then I observed him lower his machine gun and shoot approximately three to five rounds into the back of the Afghan male.”
“After he’d done that, he looked up and saw me standing there, and looked at me and said ‘are we all cool, we good?’ And I just replied, ‘yeah mate, no worries’.”
Person 41 said he did not walk towards the man’s body to examine it after the man had been shot. He did not comment on whether the body had a prosthetic leg.
Person 41 told the court that, earlier in the raid, he saw and heard Roberts-Smith order a subordinate soldier to execute an elderly man allegedly found inside a tunnel in the compound.
He was investigating a room in the compound where he had discovered bomb-making materials and opium when he emerged into a courtyard to see Roberts-Smith and another soldier, known as Person 4, standing above a kneeling elderly Afghan male, near the entrance to a tunnel.
Person 41 said: “RS [Roberts-Smith] walked down and grabbed the Afghan male by the scruff of his shirt.”
He said Roberts-Smith walked the man about two metres until he was in front of Person 4, “then kicked him in the back of the legs behind the knees until he was kneeling down … RS pointed to the Afghan and said to Person 4 ‘shoot him’.”
Person 41 said he did not want to witness what he realised was about to occur, and stepped back into the room where he had previously been. He said he heard a muffled round fired from an M4 rifle – “I’ve fired thousands of those rounds and I know what they sound like”. He waited another “15 or so seconds” before stepping back into the courtyard.
He said Roberts-Smith was no longer in the courtyard, but Person 4 was standing above the Afghan male, who was dead from a single bullet wound to the head.
He inspected the body. “There was quite a lot of blood flowing from the head wound.”
The two Australian soldiers did not speak.
“He seemed to be in a bit of shock to me.”
The court heard Person 41 had suffered anxiety over being subpoenaed in this case and he was queried by lawyers for Roberts-Smith over who he had spoken to about what he had seen in Afghanistan.
Lawyers for Roberts-Smith also drew attention to alleged contradictions in the newspapers’ case. In the newspapers’ defence, it is alleged the elderly Afghan was executed on the orders of a different soldier, known as Person 5, and that Roberts-Smith was only a bystander who did nothing to intervene.
Person 41 was also queried about antipathy towards Roberts-Smith within the SAS. He agreed there were “haters” within the regiment, jealous of his decorations.
Before giving his evidence, Person 41 sought, and was granted by the judge, a certificate under section 128 of the Evidence Act, protecting him against self-incrimination.
Person 4 is scheduled to give evidence, on behalf of the newspapers, later in the trial.
Roberts-Smith’s defamation trial recommenced on Wednesday in the federal court after another months-long delay caused by Covid restrictions and lockdown.
During earlier evidence before the court, Roberts-Smith was questioned over the alleged murder of the elderly man inside the compound. He said he never ordered the man shot and allegations he had were “completely false”.
The events of Easter Sunday 2009, in Whiskey 108, in a village known as Kakarak in Uruzgan province, have emerged as central to the allegations made against Roberts-Smith, a Victoria Cross winner, and one of Australia’s most decorated soldiers.
The newspapers have also alleged that during the same raid on Whiskey 108, Roberts-Smith dragged the detained Afghan man – who had a prosthetic leg – outside the compound, threw him to the ground, and shot him with a machine-gun “10 to 15 times”.
Roberts-Smith says he killed the man with the prosthetic leg, but that he was an insurgent, running outside the compound, and carrying a weapon. Roberts-Smith insists the man was a legitimate target, a threat to soldiers’ safety, and was killed within the laws of war.
The prosthetic leg was later souvenired by another soldier and used as a drinking vessel at the Australian soldiers’ unofficial bar on base, the Fat Ladies’ Arms.
Roberts-Smith said he never drank from the leg, though conceded in court he “contributed to and encouraged a culture where it was acceptable to drink from the leg”. He has been photographed alongside soldiers who were drinking from the leg.
The trial, before Justice Anthony Besanko, continues.
