The allegation Ben Roberts-Smith murdered a teenager with his pistol in Afghanistan and boasted about it days later as “the most beautiful thing I’ve ever seen” should be disregarded by the judge in his defamation trial, the former soldier’s lawyers have told the federal court.
Arthur Moses SC, acting for Roberts-Smith, said there were no witnesses to the alleged murder, and that “contemporaneous defence force documents” show the teenager was released unharmed.
But the newspapers Roberts-Smith is suing have alleged in court those documents are not accurate, and do not disprove the allegation.
The allegation of the teenager’s execution, which a a former SAS soldier anonymised before court as Person 16 claimed Roberts-Smith told him about, was one of the most dramatic testimonies of Roberts-Smith’s year-long defamation trial.
Roberts-Smith, a recipient of Australia’s highest military honour, the Victoria Cross, 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.
On 5 November 2012, Roberts-Smith conducted his final operation of his final tour of Afghanistan, to Fasil in southern Uruzgan province.
In his evidence during the trial, Person 16 told the court he was manning a road checkpoint on the mission, when he took into custody and handcuffed two of four men stopped in a Toyota Hilux, including an adolescent: “I made him out to be late teens … not a fully beard, a bit chubby, and shaking in terror.”
“He appeared extremely nervous and trembling uncontrollably.”
Person 16 told the court he handcuffed both prisoners and handed them over to Roberts-Smith. He said he did not see the two men again.
Person 16 said about 15 minutes after handing over the two men – described as PUCs, “persons under control” – to Roberts-Smith, Roberts-Smith said over the troops’ radio “two EKIA”. EKIA is an initialism for “enemy killed in action”.
In the days after the mission, Person 16 said he crossed paths with Roberts-Smith in the accommodation lines at the SAS’s Camp Russell within Australia’s Tarin Kowt base.
He told the court he asked Roberts-Smith: “What happened to that young fella who was shaking like a leaf?”
Person 16 said Roberts-Smith replied: “I shot that cunt in the head … 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.”
Person 16 said he could not recall what he said in reply to Roberts-Smith “because I was shocked at what he’d said”. He said he did not report the conversation at the time because of a powerful “a code of silence” within the SAS.
In court, Person 16 was shown pictures of a dead Afghan male whom he identified as the teenager he had taken into custody.
The body was photographed with an AK-47 beside it, but Person 16 said the teenager was unarmed.
In his evidence to the court last year, Roberts-Smith was asked about the alleged killing of the Afghan teenager.
He said the account was “baseless”, that he never said those words, and that the event could not have happened, because he was never handed any prisoners on that mission, and never fired his pistol in combat while on deployment in Afghanistan.
“I’ve never had an engagement with my pistol,” he told the court.
Critical, too, to the newspapers’ allegation, was a photograph that was allegedly absent.
Lawyers for the newspapers told the court four people were taken from the Hilux vehicle at Fasil, but only three were photographed on their transfer to custody at the Australian base at Tarin Kowt, marked with tape on their clothing as GB1, GB3, GB4.
The missing photograph – of GB2 – was alleged by the newspapers to have been the teenager.
However, Moses told the court Person 16’s evidence was undermined – and the newspapers’ allegation disproved – by an operational summary prepared by the troops on the ground that day.
It was heard in open court that operational summary states: “The adolescent male was released.”
In closing submissions Moses said “that serious allegation … of murder that has been propounded in this case, comes with a problem for the respondents [newspapers]: there is no eyewitness who saw this alleged execution”.
“The contemporaneous defence force documents to which we’ve averted to, in our submissions, confirm the release of an adolescent male prisoner.
“And that explains why there is no photograph of him taken back at Tarin Kowt.”
No further detail of the operational summary document has been discussed in open court, nor has it been released as a publicly available exhibit.
However, Nicholas Owens SC, acting for the newspapers, told the court in earlier closing submissions that the operational summary document was unlikely to be accurate.
He said the assertion that the adolescent was neither interrogated nor photographed but simply released – but then his release documented in formal reporting of the mission, was a highly unusual and “suspicious” divergence from standard operating protocols for the Australian troops, and inconsistent with the treatment of any other person detained that day.
“By definition, a PUC (person under control) who is not taken back to Tarin Kowt is released. It is for that reason that that utterly banal fact is, on the evidence in this case, never recorded in post-mission reporting. So why, we ask rhetorically, was it thought necessary to make a specific reference in this case to something that would otherwise be assumed, namely, that a person who wasn’t taken back to Tarin Kowt was left alive on target?”
Owens said “many other PUCs” were taken that day and there is no report of them being released.
“We accept that on its face the [operational summary] is a document powerfully in Mr Robert-Smith’s favour, in the sense that it records that the adolescent was released. But we say when one looks at the probability that if that was in fact what happened, would that have been recorded in this way? We say that it would not.
“In any event, it certainly renders far more suspicious that he was not photographed when he was regarded as sufficiently important to be dealt with in the contemporaneous reporting summary.”
The trial, before Justice Anthony Besanko, will conclude this week. A judgment is not expected for several months.
