A serving SAS soldier has denied in court that emails between him and Ben Roberts-Smith – including marked-up pictures of a compound in Afghanistan – demonstrated they had colluded on their evidence about a mission, during which the newspaper defendants allege two civilians were murdered.
The soldier, anonymised in the federal court as Person 29, is a former comrade of Roberts-Smith and the godfather to one of his children.
Under cross-examination by lawyers for the newspapers on Thursday, Person 29 rejected assertions the pair had collaborated to ensure their stories about the mission aligned.
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.
The 2009 SAS raid on a compound known as Whiskey 108 in the village of Kakarak – an insurgent redoubt in Afghanistan’s southern Uruzgan province, has emerged as one of the most critical, and fiercely contested, elements of this trial.
The newspapers allege two men – one with a prosthetic leg and the other an elderly man – were discovered hiding in a tunnel in the compound and were taken into custody by the Australian soldiers before being murdered.
The man with the prosthetic leg was allegedly machine-gunned by Roberts-Smith outside the compound, with his leg later taken as a war trophy by another soldier and used as a drinking vessel for celebrating troops. The other man was allegedly executed by a junior soldier on Roberts-Smith’s orders – a “blooding” of a new trooper.
Roberts-Smith and three soldier witnesses, who have appeared in this trial on his behalf, have dismissed that version of events as impossible, saying no people were found inside the tunnel. Five other Australian SAS soldiers subpoenaed by the newspapers have told the court two men were found hiding in the makeshift tunnel.
Under cross-examination by Nicholas Owens SC, acting for the newspapers, Person 29 was shown an email sent to him by Roberts-Smith in July 2019, days before his outline of evidence was filed to the court.
Attached to the email was an image of Whiskey 108 marked with blue pen. A blue box drawn on the picture, Owens said, marked where an insurgent would be said to have been shot by Roberts-Smith.
Owens put it to Person 29 he was speaking “very regularly” to Roberts-Smith in the lead up to filing his outline of evidence, and discussing Whiskey 108 so their stories would align.
“I can’t say we were talking regularly … but the Whiskey 108 mission would have been a topic of conversation,” Person 29 replied, but denied any collusion.
Owens asked: “I want to put to you again, when you had a conversation with Mr Roberts-Smith about this document, it was for the purpose of aligning your stories about Whiskey 108 in key respects, do you agree?”
“No, I don’t agree,” Person 29 replied.
Person 29 admitted he had failed to provide the email to the court despite receiving a subpoena calling for all communications between himself and Roberts-Smith relating to Whiskey 108. He said he “habitually” deletes emails.
But Owens accused the soldier of deliberately defying the subpoena.
Person 29 apologised to the court for not comprehensively searching his computer files for documents relating to the Whiskey 108 mission, insisting his failure to search computer hard drives was not a deliberate attempt to hide information.
He conceded he did not search a hard drive that he owned and that he knew contained footage from the deployment that included the Whiskey 108 mission.
Owens accused him of withholding a video of Whiskey 108 being bombed, which he knew he possessed, because he did not want the newspapers to have access to it.
“I put it to you, you deliberately didn’t search hard drives which you knew might be responsive to that subpoena,” Owens said. “You were seeking to conceal from us information in your possession that might be helpful to us and adverse to Mr Roberts-Smith.”
“That’s not correct,” Person 29 said. “As a demonstration of my diligence, I spent numerous hours searching those documents … that I’ve handed over.
“If I was remiss to that level, I apologise, and I apologise to the court, but that was certainly not my intent.”
Person 29 remains under cross-examination. The trial, before justice Anthony Besanko, continues.
