The most senior SAS officer called to give evidence by Ben Roberts-Smith in his defamation trial has contradicted another of Roberts-Smith’s key witnesses over the death of a man during a 2009 raid on an Afghan compound.
Person 81, a serving senior officer in the SAS and a 25-year veteran of the military, is the final of 40 witnesses called in Roberts-Smith’s year-long defamation trial.
Roberts-Smith, a Victoria Cross winner, is suing three Australian newspapers over reports he alleges defame him as a war criminal and murderer. He denies all wrong-doing. The newspapers are defending their reporting as true.
The federal court heard on Wednesday that Person 81 was the troop commander during a 2009 deployment and ordered SAS troops to raid a compound known as Whiskey 108 in the village of Kakarak in southern Afghanistan on Easter Sunday.
It is alleged by the newspapers in their defence that two men were killed after being discovered hiding in a crude hand-dug tunnel in Whiskey 108. The newspapers allege an elderly man was shot by a “rookie” trooper on the orders of Roberts-Smith and his patrol commander, while the other man, who had a prosthetic leg, was shot to death with a machine gun by Roberts-Smith.
Roberts-Smith has denied the allegations as impossible, telling the court “there were no men in the tunnel”.
He has previously said he shot and killed the man with a prosthetic leg, whom he discovered running and armed, outside the compound. The man was an insurgent, lawfully killed within the laws of war, Roberts-Smith said.
The elderly man, according to Roberts-Smith, was killed outside the compound by another Australian soldier, unknown to him, but whom he credits with saving his life.
Person 81 told the court he heard no engagements at Whiskey 108, and was not told of any insurgents being killed. He testified that after the SAS troops stormed and secured Whiskey 108, he entered the compound with other members of the troop headquarters.
He told the court he saw Afghan civilians inside the bombed out compound.
He said he saw “body parts” in the rubble, amongst “rocket paraphernalia”.
After the compound was declared “cleared”, a “rendezvous meeting”, known as an RV, was called between patrol commanders and the troop commanders to plan for the next target.
Person 81 said with Whiskey 108 secured, he was preparing his orders for the Australian soldiers to move to a neighbouring compound, codenamed Whiskey 109.
Arthur Moses SC, acting for Roberts-Smith, asked Person 81: “Did you see any engagements in the Whiskey 108 compound after the compound was declared cleared?”
Person 81: “No.”
Moses: “Do you recall hearing any engagements while you were in the compound?”
Person 81: “No.”
Moses: “Do you recall hearing reports of any engagements?”
Person 81: “No.”
This evidence contradicts one of Roberts-Smith’s other witnesses – his patrol commander, Person 5 – who told the court that during the RV meeting, he heard gunshots outside the compound and ran out to investigate.
Person 5 told the court he discovered Roberts-Smith engaging and killing an insurgent, later discovered to be the man with the prosthetic leg.
Person 5 said he asked Roberts-Smith if he was all right: “He said ‘yep’. They just engaged two squirters to the north.”
Person 5 told the court he asked if the men were “KIA” – killed in action. When that was confirmed, he said he returned to the troop commander’s meeting.
Moses asked Person 5: “When you went back to the RV meeting, did you say anything to Person 81 or anybody else?”
Person 5: “I informed Person 81 there were two KIA on the north-west corner of the compound.”
Person 81 told the court he never heard any engagement while inside Whiskey 108 and was never informed about an engagement, nor of any enemy combatants killed in action.
Person 81 testified he was told about the tunnel but he wasn’t told anybody was found inside.
The tunnel at Whiskey 108, and whether there was anybody discovered within, has emerged as a critical contention in Roberts-Smith’s sprawling and complex defamation action.
While it is not disputed that at least two Afghan men were killed by Australian SAS troops during their raid on Whiskey 108 on 12 April 2009, at issue is whether the men were insurgent targets legitimately killed, or whether they were prisoners who were unlawfully killed.
The argument has split the Australian SAS troops who were there: Roberts-Smith and five other soldiers have said there were no men in the tunnel. A further five have said there were men pulled from the tunnel.
A sixth soldier, Person 4, who is alleged in the newspapers’ defence to have shot dead the elderly man on Roberts-Smith’s orders, refused to testify on grounds of self-incrimination.
Even members of the same patrol have given irreconcilable evidence. Six members of one patrol subpoenaed to give evidence were split three-three over whether anybody ever came out of the tunnel.
Person 81 remains in the witness box, before Justice Anthony Besanko.
