Allegations Ben Roberts-Smith kicked an unarmed, handcuffed detainee off a cliff in Afghanistan were reported to senior command within the SAS in 2013, but no action was taken, with the regimental sergeant major saying it was “over his head”, the federal court has been told.
Roberts-Smith, a recipient of the Victoria Cross and one of Australia’s most decorated soldiers, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports he alleges portray him as committing war crimes, including murder.
The newspapers are pleading a defence of truth. Roberts-Smith denies all wrongdoing.
One of the key allegations made against Roberts-Smith concerns a 2012 SAS mission to the village of Darwan in Uruzgan province.
The trial has heard evidence from a former SAS soldier, anonymised before court as Person 4, that he saw Roberts-Smith during that operation kick an unarmed, handcuffed and captive Afghan man in the chest, “catapulting him” off a cliff.
“I saw the individual smash his face on a rock, and I saw the teeth explode out of his face,” he told the court.
Person 4 said the Australian soldiers then walked down a track to the bottom of the cliff where Roberts-Smith ordered him and another subordinate soldier to drag the badly injured man under a tree, where he was shot by the other soldier after discussion with Roberts-Smith.
On Friday afternoon in the federal court, another former comrade of Roberts-Smith, a still-serving member of the SAS anonymised as Person 18, said Person 4 had broken down during a drinking session later in 2012, back in Australia, as he recounted the event.
“He said ‘I watched Ben Roberts-Smith kick a detainee off a cliff’,” Person 18 told the court.
Person 18 said a meeting was organised with the SAS regimental Sergeant Major in early 2013 to discuss the allegation.
“The RSM [regimental sergeant major] said, words to the effect of, ‘it was out of his hands, it was way over his head, he honestly didn’t know what to do with it’.”
Person 18 said no further action was taken.
“The outcome of the first meeting wasn’t … it wasn’t receptive,” he told the court.
In 2014, in another meeting with a new regimental sergeant major, the allegation was raised again.
“[In this meeting] Person 4 said the same thing: ‘They were conducting a mission in Darwan, they had detained persons in Darwan … he turned around and he saw his team commander kick a detainee off a cliff’.”
Person 18 said the regimental sergeant major “had a list of topics he wanted to talk to us about”.
“It was the allegations that something had happened during 2012 rotation; allegations of things that had happened in 2009; discrepancies between people in regards to Tizak [the site of a battle in 2010]; allegations of bullying; he went through each one of these, asking what we knew.
“The main thing I recall was Person 4 talking about Darwan … he broke down in the office.”
Roberts-Smith has denied ever kicking anybody off a cliff.
In his evidence before the court last year, Roberts-Smith said the alleged version of events in Darwan could not have happened because “there was no cliff … there was no kick”, and that the slain man was an enemy “spotter” who was discovered hiding in a cornfield carrying a radio, and was lawfully killed within the military’s rules of engagement.
Person 18 also gave evidence to the court he had received two letters posted to him at the SAS’s barracks in Perth, threatening that he would “go down” for murder if he didn’t recant evidence given to a military inquiry into alleged war crimes committed by Australian troops in Afghanistan, led by Justice Paul Brereton.
That inquiry reported in 2020, finding evidence of 39 murders of civilians and prisoners by, or at the instruction of, members of Australian special forces. Twenty-five ADF personnel were reported to be involved.
Person 18 said he received the letters in June 2018, after he had given an initial interview to the inquiry and having been informed he was required for a second interview.
The court has previously heard that the letters said:“You and others have worked together to spread lies and rumours to the media and the inspector general’s inquiry. You have one chance to save yourself. You must approach the inquiry and admit that you have colluded with others to spread lies.
“We are very aware of your many murderous actions over many tours in Afghanistan, including specific dates … just like when you took part in the execution of two persons-under-control at Tizak. You know what you have done and so do we.
“Don’t forget this because it will not go away. You will go down, better to take a reprimand than murder charges.”
The letters were signed “a friend of the regiment”.
The newspapers have alleged during this trial that Roberts-Smith was the author of the letters, claiming Roberts-Smith wore gloves to prepare and print off the documents at the offices of Channel Seven, bought stamps from a number of different shops and instructed a private investigator to address and mail the sealed envelopes he had placed them in.
The court has also heard evidence from Roberts-Smith’s ex-wife, Emma Roberts, that she confronted Roberts-Smith over the letters when their contents were publicly reported.
Roberts told the court she asked Roberts-Smith: “What the fuck have you done?”
She also told the court: “He told me he had written the letters, had printed them at the Seven office, had sealed them in the envelopes, addressed them, and had given them to [family friend and occasional employee] John McLeod to post.”
McLeod, a former police officer-cum-private investigator, also gave evidence to the court that he was given four envelopes to post by Roberts-Smith during a meeting at a Brisbane Bunnings, and was later sent Person 18’s name and PO box address at the barracks. McLeod said he posted two of the envelopes and gave the other two to police.
In his evidence last year, Roberts-Smith denied any involvement in the letters and said the conversation with his wife never occurred.
“That’s not true,” he told the court.
Person 18 remains in the witness box. The trial, before Justice Anthony Besanko, continues Monday.
