An SAS soldier alleged by three newspapers to have murdered a handcuffed Afghan civilian in 2012 has told the federal court he twice refused to be interviewed by the Australian federal police regarding his actions in Afghanistan.
The retired soldier, anonymised as Person 11, on Wednesday denied assertions in court from the newspapers’ lawyers that he was lying in his evidence to derail an AFP investigation into possible war crimes.
Person 11, who was called as a witness by Ben Roberts-Smith in his defamation case against the newspapers, was questioned in court over the alleged murder of an Afghan farmer, Ali Jan, who was allegedly kicked off a cliff by Roberts-Smith before being dragged into a field and shot by Person 11.
Both Roberts-Smith and Person 11 have denied the allegation, saying the man killed was an insurgent spotter who was legitimately killed within the laws of war.
Roberts-Smith, a Victoria Cross recipient, 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.
Under cross-examination on Wednesday, Person 11 agreed the AFP had twice asked him to submit to a formal interview concerning his actions while deployed to Afghanistan.
Person 11’s lawyers responded on his behalf to the AFP, saying he “respectfully declines the offer to participate in a record of interview as part of the AFP investigation into his conduct during ADF operations in Afghanistan”.
Nicholas Owens SC, acting for the newspapers, put it to Person 11 that he was concerned by the AFP investigation because “there’s a risk that investigation may turn into a prosecution”.
Person 11 told the court: “To the best of my knowledge, I’m just aware they wanted to question me, that’s what the statement says. I’m not aware of an AFP investigation.”
Owens said Person 11 was “refusing to accept the obvious fact” he was being investigated by the AFP over war crimes allegations.
“I respectfully disagree with you Mr Owens,” he said.
Person 11 was interviewed three times by the inspector general of the Australian defence force, the court heard on Wednesday. He was excused from a fourth interview on mental health grounds.
Owens alleged Person 11 had come to court in the defamation action to give false evidence in order to derail an AFP investigation into possible war crimes. Owens put it to Person 11 he was motivated to lie because if Roberts-Smith won his defamation action the chances of charges being laid against him would be lessened.
“That is not true,” Person 11 said.
Owens put it to Person 11 he had also come to court to demonstrate loyalty to Roberts-Smith, understanding that if either he or Roberts-Smith testified against the other, it would prove “almost insuperable” to their own cases.
“I put to you that you have come here to give a false account of Darwan because you realise that the truth would have very serous adverse consequences for both you and Mr Roberts-Smith?”
“That’s not true,” Person 11 replied. “The truth would have the opposite effect. The truth, I hope, will prevail, and it will clear [us].”
The court also heard on Wednesday that Person 11’s lawyers had been organised for him by Roberts-Smith.
Documents tendered to the court showed Person 11 had accrued more than $125,000 in legal fees, but he said he was unsure who was paying the bill.
“I’m not aware of any arrangement about who is picking up the tab. I understand it’s an extensive amount of work,” Person 11 said, but he did not know the details of his legal liabilities. “I have not seen invoices.”
Last month, invoices were tendered before the court showing Channel Seven was being billed for Person 11’s legal fees.
The court has previously heard the legal bills for some soldiers called as witnesses by Roberts-Smith were being paid for by Channel Seven, a publicly listed company and Roberts-Smith’s employer, until the arrangement was revealed in court, after which Channel Seven requested the fees be paid by Australian Capital Equity, the private company of the Seven chairman Kerry Stokes.
The chief operating officer of Australian Capital Equity is James McMahon, a former commanding officer of the SAS.
Owens put it to Person 11 that the fact Roberts-Smith had organised his legal counsel, and for his legal bills to be paid, had indebted him to Roberts-Smith, and that he was prepared to lie to the court for both of their benefits.
Person 11 denied this: “There are allegations of [Roberts-Smith] as a war criminal and against me as a war criminal, yes, but we each have our own paths to tread to clear our names.”
The alleged murder of Ali Jan is the most notorious allegation of this complex defamation trial – the newspapers allege as part of their defence the murder was a “joint criminal enterprise” between Roberts-Smith and his subordinate, Person 11.
Roberts-Smith and Person 11 have both denied the allegation, telling the court they opened fire on the man – an insurgent spotter – after they discovered him hiding in a cornfield and carrying a radio in his hand.
Earlier on Wednesday, Person 11 said he had felt hurt that Person 4, formerly one of his closest friends in the SAS regiment and the best man at his wedding, had made allegations he was involved in an unlawful killing in Darwan.
“I was aware in 2018 that Person 4 had said certain things which had given rise to these allegations, and I felt incredibly hurt that someone who was so close for a number of years, who had been a mentor and good friend, not just professionally and personally, would say such things that would cause such grief and heartache.”
Person 11 said he had severed his friendship with Person 4, but denied he was angry with him.
“I pity him, I feel for him. He was a great friend, a great man. I know that he struggles, I understand his struggles.”
Person 11 remains in the witness box in the trial before justice Anthony Besanko.
