An SAS whistleblower who spoke to the media about a war crime allegedly committed by Ben Roberts-Smith has told the federal court he knew he was defying orders in doing so, but felt he couldn’t walk past such an “egregious” allegation.
A soldier anonymised as Person 7, a still-serving SAS veteran of multiple deployments to Afghanistan with the SAS, spent a second day under cross-examination in Roberts-Smith’s defamation case on Thursday. He was questioned extensively about his service alongside Roberts-Smith and their fractious relationship.
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.
Person 7 told the federal court he was one of two SAS sources who appeared anonymously on 60 Minutes in 2019 in breach of defence force protocols. He alleged he had been told by another soldier that Roberts-Smith had kicked a bound, unarmed prisoner off a cliff during an SAS mission.
Person 7 said that he had initially declined to speak to the media but that he ultimately agreed to because he “wanted to be a voice from within”.
Person 7 denied he appeared on the program out of malice and “jealousy” towards Roberts-Smith, saying he was motivated by a desire to hold his former comrade accountable for his actions.
“I am a senior [non-commissioned officer] in the army, I was told of an allegation of an egregious nature, I am not walking past that,” he said on Thursday. Person 7 said he raised the allegation with senior command within the SAS as long ago as 2013.
Person 7 said he had been told by another soldier, known as Person 4, that Roberts-Smith had kicked an unarmed Afghan prisoner off a cliff during a raid in the village of Darwan in 2012.
He said he was told the story on three separate occasions, including details that Person 4 watched the Afghan man’s head hit a rock as he fell, sending his teeth flying out of his head.
Person 4 has earlier given evidence in this trial, telling the court he saw Roberts-Smith kick the bound prisoner off the cliff, falling to a dry riverbed below. Person 4 told the court the man was still alive when the soldiers reached the creek bed. He said Roberts-Smith then ordered he and another soldier to drag the badly injured man under a tree where he was shot dead on Roberts-Smith’s orders.
Person 4 objected to giving evidence about his actions on other SAS missions in Afghanistan on the grounds of “self-incrimination” and denied suggestions by Roberts-Smiths lawyers that health issues had affected his memory.
Roberts-Smith has consistently denied he unlawfully killed anybody on operation at any time, and specifically during the mission in Darwan.
In his evidence, he told the court that he and a comrade had encountered the man shot in Darwan in a cornfield.
The man had been carrying a radio, refused an order to stop and was lawfully “engaged”, Roberts-Smith said. He said the man was a legitimate target shot dead in accordance with the laws of war.
Roberts-Smith maintained he could not have killed the man as alleged because there was no cliff from which to kick him. “There was no cliff … there was no kick,” he told the court.
Roberts-Smith’s barrister, Arthur Moses SC, argued Person 7 had no direct knowledge of events at Darwan. Moses put it to Person 7 he had no right to air the allegations from that mission on national television, particularly if he did not have the “courage” to show his face.
The soldier replied: “Mr Moses, if I’m told that a war crime has possibly been committed of a man being kicked off a cliff, dragged under a tree … left to wait there in agony and then executed … my responsibility is to make sure that that allegation is heard.”
Person 7 conceded some of his comments to journalists about Roberts-Smith were “petty childish gossip”, including a rumour circulated by the regiment padre that a former neighbour had described Roberts-Smith as “a bastard of a kid”.
Person 7 fought alongside Roberts-Smith at Tizak in 2010, the battle for which Roberts-Smith was awarded the Victoria Cross.
Moses put it to Person 7 he was motivated by malice towards Roberts-Smith and jealousy of his numerous decorations.
“You’re consumed with hatred of him because he got the Victoria Cross,” Moses said.
“I’m not consumed with hatred Mr Moses,” Person 7 replied. “I don’t like him, but I’m not consumed with hatred.”
“You’re obsessed by his awards,” Moses put to him.
“I’m not obsessed,” Person 7 replied.
Moses also put it to Person 7 that he was trying to “influence” a formal investigation by the Inspector General of the Australian Defence Force (IGADF) into allegations of Australian war crimes by appearing anonymously on television.
“You knew the allegation of kicking a man off a cliff was before the IGADF … Why did you need to repeat it on national TV as an insider?” Moses asked.
“To let the Australian public know this was a serious allegation … and there was an aggressive PR campaign with witnesses being intimidated,” Person 7 said.
Person 7 said his initial meeting with journalist Chris Masters was sanctioned by the military command, but that his subsequent conversations and interviews with Masters and Nick McKenzie were in breach of defence force policy.
“It was a mistake, I know that, because it was against defence policy … I’m not proud of it, however, I can’t say I regret it, no,” Person 7 said.
Masters and McKenzie are respondents in this defamation hearing.
Person 7 remains in the witness box under cross-examination. The trial, before Justice Anthony Besanko, continues.
