A serving SAS soldier has told a court that at least two men were pulled from a tunnel inside a compound being raided by Australian SAS troops during a 2009 clearance operation in Afghanistan, a mission that has since become a key element of the defamation trial brought by Ben Roberts-Smith.
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.
Anonymised before the federal court as Person 42, the Warrant Officer Class 2 and veteran of more than two decades’ military service appeared in court as a witness for the Nine newspapers’ defence.
Person 42 told the court he and other soldiers discovered the hidden tunnel during the raid on a compound called Whiskey 108. The soldiers called out in Pashto for anyone hiding inside to come out.
“They came out unarmed, they came out freely, they came out relatively quickly once we gave them the commands,” he said.
Person 42 said he took custody of one of the men and patted him down to ensure he was unarmed before passing him to the control of another soldier. He did not see the man again.
The events at Whiskey 108 on 12 April 2009 – and the presence or otherwise of men in the tunnel – have emerged as central to the allegations made against Roberts-Smith in the newspapers’ defence of the defamation claim. Roberts-Smith is a Victoria Cross winner and one of Australia’s most decorated soldiers.
Roberts-Smith has been accused in the course of the newspapers’ defence of ordering the execution an elderly Afghan man and murdering another man who had a prosthetic leg, both of whom had been taken from the tunnel in the compound. Roberts-Smith denies the allegations and says there was no one discovered in the tunnel.
Two other soldiers have previously given evidence in the trial on behalf of the newspapers about the alleged executions of the two men at Whiskey 108.
One soldier, Person 41, told the court Roberts-Smith and another soldier borrowed his suppressor which was then used in the execution of the elderly man. Person 41 also said he later saw Roberts-Smith “frogmarch” the man with a prosthetic leg outside a village compound, throw him to the ground and machine-gun him to death.
Another soldier, Person 14, said he saw an Australian soldier carrying a distinctive weapon, a Minimi machine gun, throw a human-shaped object to the ground and fire a burst of bullets into it. He said he later saw Roberts-Smith carrying a Minimi during that mission.
Roberts-Smith has consistently denied those versions of events, describing them as “completely false”. In his evidence last year, he said he never ordered an elderly man shot, and says he killed the man with a prosthetic leg outside Whiskey 108 because the man was a legitimate target, armed and running away, and was killed in accordance with troops’ rules of engagement.
He said no people were taken out of the tunnel in the compound.
“There were no people in the tunnel at Whiskey 108,” he told the court.
Whiskey 108 was a compound in the village of Kakarak, known as an insurgent stronghold, on the western side of the Dorafshan River in Uruzgan province and near an allied forward operating base.
In court on Wednesday, Person 42 said Whiskey 108 had been bombed by allied aircraft ahead of the Australian troops’ mission to ‘clear’ the compound on 12 April 2009, checking for insurgents, weapons, and bomb-making materials.
They found some weapons, ammunition and grenades, but “there were no enemy combatants found as part of the assault”, he said.
Shown pictures of the bodies of the men allegedly killed during the raid on Whiskey 108, Person 42 said he was unable to positively identify them.
Under cross-examination, he said Australian troops discovered the tunnel after being alerted to it by women, and possibly children, who were in the compound.
Arthur Moses SC, acting for Roberts-Smith, put it to Person 42 that his evidence was not true “because you weren’t there”.
“That is not true,” the soldier replied.
The trial before Justice Anthony Besanko continues.
