A former soldier scheduled to give evidence against SAS veteran Ben Roberts-Smith is seeking to pull out, prompting claims in court that Roberts-Smith’s barrister spoke to a senior lawyer who then contacted the secret witness.
In a dramatic turn in the case on Wednesday morning, lawyers for the newspapers defending a defamation claim from Roberts-Smith told the federal court two critical witnesses had been contacted by lawyers, allegedly after Roberts-Smith’s barrister Arthur Moses SC contacted another senior barrister to express concerns the witnesses’ interests were not being properly protected. The witnesses – former soldiers known in court documents as Person 56 and Person 66 – had agreed to give evidence for Nine newspapers.
Person 56 has an application before the court to be excused from a subpoena to give evidence, citing medical grounds.
Nicholas Owens SC, acting for Nine newspapers, on Wednesday said “through means unknown” the two SAS soldiers had been “placed in contact” with new lawyers after Moses contacted another Sydney lawyer.
Owens told the court: “We have become aware that recently Mr Moses has made contact with Mr Phillip Boulten … and we understand that Mr Moses expressed to Mr Boulten concerns that the interests of Person 56 and also 66 may not be being properly protected in relation to [them] being subpoenaed to give evidence in these proceedings.”
Owens raised the issue of how the witnesses’ identities became known to the new lawyers. He told the court “there is, of course, a prohibition on the true identity of Person 56 and Person 66 being made known to anyone” apart from authorised legal representatives. The new lawyers, Owens said, were not authorised representatives.
“There was an agreement by Person 56 to both speak to us and not oppose any application by us to call him to give evidence in the proceedings,” Owens said. But he said after contact from those lawyers “Person 56’s position has changed”.
Owens said the initial contact with the witnesses occurred “without the knowledge of … [the soldiers’] retained defence-approved lawyers”, who were only subsequently made aware of the contact.
Owens told the court on Wednesday morning: “Mr Boulten and Mr Hodges are meeting with Person 66 today.”
Lawyers for the newspapers sought, and were granted, leave to file subpoenas to two lawyers, Phillip Boulten SC and Peter Hodges, seeking documents relating to any contact with the soldier witnesses. Roberts-Smith has been issued with a notice to produce “evidence of communications between those groups of people and these two witnesses about their participation in the proceedings”. They are required to respond by Thursday afternoon.
Neither Boulten nor Hodges responded to queries from the Guardian. It is not suggested they have engaged in any wrongdoing.
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 all wrongdoing.
According to the newspapers’ defence, Person 66 was an SAS soldier on Roberts-Smith’s patrol during an operation in Syachow in 2012. He had not killed a person in combat prior to the mission.
The defence alleges that during the mission, two captive and unarmed Afghan men – referred to in court documents as “PUCs” (persons under control) – were taken out of the compound where they were being held and brought to a nearby field. There Roberts-Smith allegedly ordered Person 66 to shoot them: an order with which Person 66 complied.
The bodies of the two men were then allegedly photographed with “throw-downs” – weapons and military paraphernalia placed on the bodies – to give the appearance the men were killed lawfully in combat.
The defence claims Roberts-Smith later allegedly told other soldiers he had “blooded” the rookie soldier. He denies the allegation.
The defence says Person 56 was a member of Roberts-Smith’s SAS patrol during a mission in the village of Darwan in Uruzgan province, on 11 September 2012.
It is alleged that on that day Roberts-Smith took a handcuffed non-combatant, a farmer named Ali Jan, and forced him to kneel on the edge of a 10 metre cliff, before kicking him off. Ali Jan was then shot dead and his body dumped in a field, the newspapers say.
Roberts-Smith has consistently denied the newspaper’s account of Ali Jan’s death, telling the court the man purported to be Ali Jan was a “spotter” – a forward scout who reports soldiers’ movements to insurgents – who was shot after being discovered hiding in a cornfield. He says the man was in possession of a radio and was a legitimate military target.
In court, Roberts-Smith’s lawyers have previously opposed Person 56 being allowed to testify, suggesting the soldier had done a deal with the newspapers to only talk about specific issues. The newspapers deny any such deal but say they expect the witness to object if asked about matters other than Darwan.
Soldier witnesses have consistently applied for, and been granted, certificates of immunity against self-incrimination during the trial.
A still-serving SAS soldier, Person 14, currently being cross-examined, told the court he met with journalist Chris Masters in Canberra in 2018 and discussed his military service, including a 2009 operation on a compound called Whiskey 108, the site of one of the central allegations against Roberts-Smith.
He also told the court he spoke with Masters and fellow journalist Nick McKenzie at a subsequent meeting in 2018. He told the court he does not recall any of their discussion in that meeting.
Moses called in court for the journalists to produce any notes or recordings of those meetings.
Person 14 was accused by Moses of fabricating evidence to the court that Roberts-Smith acted outside the laws of war during their deployments in Afghanistan.
“You’re making this up aren’t you?” Moses said.
“No,” the witness replied.
The trial, before Justice Anthony Besanko, continues.
