A former comrade of ex-soldier Ben Roberts-Smith has been forced to defend his service record and court evidence during a cross-examination where he was accused of being jealous and throwing Roberts-Smith “under a bus”.
The anonymous SAS soldier known as Person 14 served eight deployments in Afghanistan including missions alongside Roberts-Smith.
Earlier in his evidence, Person 14 refused to answer questions about whether he had been a source for journalists and media reports. On Tuesday, the judge hearing the defamation case, justice Anthony Besanko, did not compel him to answer.
In his evidence last week, Person 14 told the court that in April 2009 he helped form a protective cordon around the compound Whiskey 108 – a known insurgent base in the village of Kakarak.
He told the court he saw in fading light a soldier carrying a Minimi machine gun – and wearing the distinctive face paint only worn by Roberts-Smith’s five-man patrol – throw a “dark figure” to the ground outside the compound before firing a one-second burst of machine-gun fire into the figure.
Person 14 later examined the slain body who had a prosthetic leg. He said later on that mission he saw Roberts-Smith carrying a Minimi machine gun – a distinctive and unusual weapon.
Person 14 also said that, in 2012, he witnessed Roberts-Smith order a member of the Afghan national army, through an interpreter, to murder a captive and unarmed man. The killing was carried out.
Under cross-examination, Person 14 defended his evidence, debating with barrister Arthur Moses SC, acting for Roberts-Smith, over his recollections of missions in Afghanistan.
Moses and Person 14 debated whether a figure thrown to the ground and shot during a raid on a village in 2009 was wearing “dark” or “black” clothing and whether the prosthetic leg was “beige” or “white”.
Roberts-Smith earlier told the court he killed the man with the prosthetic leg but he was an insurgent running outside the compound and carrying a weapon – and was, therefore, a legitimate target killed within the laws of war.
Moses said Person 14’s version of events was a fiction: “It didn’t happen did it?”
“It 100% happened,” Person 14 said.
“You have come here to throw Mr Roberts-Smith under the bus any way you can, haven’t you?” Moses said. “No,” was the reply.
Person 14 conceded he had drunk alcohol from the prosthetic leg after it was souvenired by another member of the SAS and taken to the soldiers’ on-base bar called the Fat Ladies Arms.
Asked why he drank from the leg, Person 14 told the court: “It helped me decompress, let off steam, bond … [it is a] high-tempo life, you never know when your last day is coming.”
Person 14 was also forced to defend his own service record over an alleged fight with a female US officer in Afghanistan during a party at the allied forces Tarin Kowt base.
He told the court he had been officially reprimanded and prevented from going on a deployment to Afghanistan over a hard drive containing photos from his Afghanistan service that he said was stolen from his house by his estranged wife.
He had been in the middle of a divorce, he told the court, when his wife had allegedly broken into his home and stolen the hard drive. Person 14 alleged in court his wife tried to blackmail him for $50,000 – threatening to leak the photographs to the media.
Person 14 reported the loss of the hard drive to his superiors and a senior officer had to “negotiate” for the return of the files, the court heard. He later accepted a charge of disobeying a lawful general order.
This charge meant he was not allowed to tour Afghanistan in 2010. On that mission, during a battle at Tizak, Roberts-Smith stormed machine gun posts for which he was later awarded the Victoria Cross, Australia’s highest military honour.
Person 14 was asked whether he resented “the fact that Mr Roberts-Smith was awarded a VC?”
“No,” he said.
Pressed again on whether he resented Roberts-Smith being awarded a VC for actions on a tour he wasn’t allowed to go on, Person 14 replied: “No.”
“But you were upset about not being able to go on that tour?” the barrister asked. The soldier replied: “100%.”
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 all wrongdoing.
In his evidence, Roberts-Smith told the court that winning the VC had made him a target for rumours, hostility and spiteful undermining from other soldiers. The medal, he said, “put a target on my back”.
Person 14 said he had not undermined Roberts-Smith and had a solid working relationship with him. He “had his doubts” about the veracity of Roberts-Smith’s citation for the VC but he kept them to himself.
On Monday, Person 14 declined to answer questions about whether he had spoken to journalists about his military service or whether he was a source for media reporting. He sought a certificate protecting him against self-incrimination.
But the judge ruled he would not be compelled to answer those questions.
Moses had argued that while journalists were protected from identifying sources, witnesses were not entitled to the same protection. The trial continues.
