Ben Roberts-Smith’s patrol commander on a controversial SAS mission in an Afghan village has defended his evidence in court as truthful, after being accused of colluding with Roberts-Smith to cover up the murder of two prisoners.
The cross-examination of a retired SAS patrol commander, anonymised before the court as Person 5, focused on a mission raiding a compound known as Whiskey 108, in the Uruzgan village of Kakarak in southern Afghanistan, on Easter Sunday in 2009.
Person 5 was Roberts-Smith’s patrol commander on the mission. The pair has been accused by three newspapers of being jointly responsible for the unlawful killing of an elderly man found hiding inside a tunnel discovered in the compound, while Roberts-Smith is additionally accused of machine-gunning to death a disabled man found in the tunnel.
Both Roberts-Smith and Person 5 say no people were found inside the tunnel, contrary to evidence given by other Australian soldiers.
Person 5 told the court two Afghan men killed during the raid were “EKIA” – enemy killed in action, or legitimate targets lawfully killed in combat – outside the compound.
He said he had previously believed that the men who were killed had likely escaped via an alternative exit out of the tunnel to the area outside the compound, and were attempting to flee, but conceded before court that he later learned there was no other exit to the tunnel.
Roberts-Smith, a recipient of 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 any wrongdoing.
Nick Owens SC, acting for the newspapers, said to Person 5: “I put it to you, that you are making up a version of these engagements to try to conceal the fact that two PUCs [persons under control] were found in the tunnel; one was executed outside the compound, and one was executed inside the tunnel courtyard.”
Person 5 replied: “I don’t agree with that.”
Owens accused Person 5 of “making up this lie” because he “knew there had to be an explanation for why two people you knew came out of the tunnel were found dead”.
Person 5 said: “That’s not correct.”
The newspapers allege both Roberts-Smith and Person 5 were jointly involved in the unlawful killing of an elderly Afghan man found hiding in the tunnel inside Whiskey 108. The newspapers allege Roberts-Smith was present when Person 5 ordered another Australian soldier – Person 4 – to execute the elderly man.
“Pursuant to that order Person 4 placed [the Afghan man] on his knees and shot him in the back of the head. Person 4 was ordered to execute [the Afghan man] so that he could be ‘blooded’,” the defence document states.
The newspapers allege Roberts-Smith “did not say or do anything to encourage Person 5 to withdraw the order or to stop Person 4 following the order”, arguing that he was complicit in, and approved of, the man’s murder.
The newspapers, and two other Australian soldier witnesses, have alleged that the second man found in the tunnel, a disabled man with a prosthetic leg, was “frog-marched” out of the compound by Roberts-Smith, where he was thrown to the ground and machine-gunned to death. One Australian soldier described it as an “exhibition execution”.
Both Person 5 and Roberts-Smith have rejected the newspapers’ version of events as false.
Roberts-Smith has told the court the man with the prosthetic leg was armed and running when he shot and killed him, while the elderly man was shot by another Australian soldier.
Person 5 said repeatedly on Friday “there were no people in the tunnel”.
And he told the court “no-one was executed at that compound”.
Earlier this week, the court heard Person 5 was in regular contact with Roberts-Smith, whom he described as a “good friend”, and who began to contact him from changing Australian mobile numbers, and communicating by encrypted phone apps, after newspaper stories about the mission were published in 2018.
Owens put it to Person 5 he had colluded with Roberts-Smith over their version of events at Whiskey 108.
“Colluding? No,” Person 5 said.
“There’s been collusion, but not from our side. Your witnesses have been colluding for the last 12 years.”
Person 5 said he and Roberts-Smith spoke “about the mission” at Whiskey 108, but did not discuss their evidence before the inspector general of the Australian defence force who was investigating allegations of war crimes, nor their evidence before this trial.
“There was no collusion ... we were trying to work out where the hell this [the media reports] was coming from.”
The court heard evidence about a PowerPoint document prepared by Person 5 showing an aerial picture of the Whiskey 108 compound which he sent to Roberts-Smith, who marked it with details of the mission such as the location of troops, entries to buildings and bodies. The document was also sent to another soldier.
Eighteen soldier witnesses have already appeared in this trial, called by the newspapers.
The court also heard this week that a total of five murder allegations had been made against the patrol commanded by Person 5. Two of them relate to Whiskey 108; three more – which are not part of this defamation action – related to a mission on a compound known as Whiskey 591 on 14 May 2010.
Person 5 remains in the witness box. The trial, before Justice Anthony Besanko, resumes Tuesday.
