Four SAS witnesses to be called by Ben Roberts-Smith in his war crimes defamation trial have been accused of colluding in their evidence concerning a murder allegation against the SAS veteran before the federal court.
In an argument over access to documents and whether they attract legal privilege, lawyers for the three newspapers being sued by Roberts-Smith have alleged the four soldiers have all given the “same, precise, demonstrably false error” in their outlines over an Afghan special forces member. Roberts-Smith’s lawyers said the newspapers’ allegation of collusion was scandalous, describing the arguments before court as “completely baseless” and “an attempt to prejudice the court and the public” against the witnesses.
Roberts-Smith and the four other SAS soldiers have all provided statements of evidence that state an Afghan police special forces officer – known as Person 12 – was not present on an Australian SAS mission to Khaz Uruzgan in October 2012. The court has previously heard evidence on behalf of the defendant newspapers that an unarmed prisoner was allegedly murdered on Roberts-Smith’s orders during that mission.
The five statements say Person 12 could not have been present because he had previously been stood down from missions with the Australians for shooting a dog – and accidentally injuring an Australian soldier – on an earlier mission.
Nicholas Owens SC told the court Person 12 was present on the Khaz Uruzgan mission, and during that mission relayed an order from Roberts-Smith to one of his subordinates to execute a detained prisoner. The order was followed and the prisoner was shot up to 10 times.
The newspapers’ application, Owens told Justice Wendy Abraham on Friday, “is really as simple as saying five witnesses have had outlines of evidence filed on their behalf, each of which contains a highly specific and false account of a material matter”.
“The account that is given has no relevance in itself. Its purpose in the case is only to provide a negative alibi [regarding Person 12] … in those circumstances we say that there is no explanation for that consistent with coincidence or innocent mistake, we say it shows a prima facie case of impropriety.”
Owens said the coincident evidence represented a “fraud”, and so the soldiers’ correspondence with lawyers lost its privilege. He stressed solicitors were not accused of wrongdoing.
“The fraud is the collusion between witnesses … multiple witnesses colluding together in relation to the evidence they will give at trial.”
Owens said it was “utterly inconceivable that five people would make the same, precise, demonstrably false error” by innocent, coincidental mistake.
Roberts-Smith, a Victoria Cross recipient 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, as well as acts of bullying and domestic violence.
The newspapers are pleading a defence of truth. Roberts-Smith denies all wrongdoing.
The court has heard that during July 2012, Australian SAS were on a mission with members of the Afghan police special forces unit, known as the Wakunish, when a member of the Wakunish opened fire on a stray dog. Shrapnel from the assault hit and injured an Australian SAS soldier.
Roberts-Smith had told the court he had understood it was a Wakunish commander, Person 12, who had fired at the dog and was subsequently removed from going on patrols with Australian SAS.
In the witness box last year, Roberts-Smith told the court he later came to learn that it was not Person 12 who had been stood down, but maintained the he was not on the Khaz Uruzgan mission.
The identity of the Wakunish member who shot the dog is critical because the newspapers allege that Person 12 was present at the Khaz Uruzgan mission in October 2012, and that Roberts-Smith ordered him to command one of his subordinates to kill a prisoner.
The newspapers allege that towards the end of the Khaz Uruzgan mission, an Afghan man who had been detained inside the final compound cleared was being questioned by Roberts-Smith’s patrol through an interpreter. Also present were members of the Wakunish, including, according to the newspapers, Person 12, who was the officer commanding.
During the interrogation of the prisoner, a member of Roberts-Smith’s patrol kicked at a discoloured area of the compound’s mud wall that appeared to be a recently constructed false wall.
From behind the false wall fell a cache of weapons, including rocket-propelled grenades.
According to the newspapers’ defence documents, Roberts-Smith saw the weapons fall out and turned to his interpreter, telling the interpreter to instruct Person 12 “shoot him or get his men to do it, or I’ll do it”.
Person 12 allegedly instructed one of his subordinates to shoot the prisoner, who fired several shots into him, killing him.
The soldier who discovered the cache, Person 14, gave evidence for the defendant newspapers earlier in this trial, saying he was standing behind the interpreter when Roberts-Smith twice gave the order “tell him to shoot him or I will”, pointing at the senior Wakunish officer on the mission, and gesturing towards the prisoner.
“One of his soldiers … trained his suppressed M4 [rifle] on the Afghan man and unloaded five to eight rounds into his centre of … mass … his torso,” before shooting him twice more in the head and neck, Person 14 told the court.
In court on Friday, Arthur Moses SC, for Roberts-Smith, said the newspapers’ allegation of collusion was scandalous, describing the arguments before court as “completely baseless” and “an attempt to prejudice the court and the public” against the witnesses.
“These are serious allegations, not principled or based on evidence. This application should never have been brought. They should have known better.”
Moses said there was no certainty, even now, over the identity of Person 12, pointing to the fact the newspapers’ had previously said he was also at an earlier mission in Darwan, but had since withdrawn that assertion.
“There are serious questions over Person 12’s identity,” Moses said. “They [the newspapers] can’t even get it right as to who Person 12 is.”
Roberts-Smith has consistently denied the allegation he ordered the execution.
He told the court there were no prisoners in the final compound at Khaz Uruzgan, and that Person 12 was not on the mission.
During his evidence last year, Roberts-Smith was asked by his barrister, Bruce McClintock SC, whether he had any PUCs (persons under control) with him or with his patrol when he was in the last compound.
“No, we didn’t,” Roberts-Smith replied.
“Did you order [the interpreter] to translate an order to Person 12 to kill a PUC?”
“No, I did not … I never killed an unarmed prisoner.”
In his outline of evidence, Roberts-Smith told the court: “I did not see Person 12, nor do I recall seeing the interpreter … during the mission. They were not ever in my presence and I did not have any conversation with them during the mission. As noted above, Person 12 was not present, as it was my understanding that Person 12 had been stood down well before this time.”
In his statement of evidence to the court, Roberts-Smith said he had understood that it was Person 12 who had fired at the dog and that Person 12 had been removed from going on patrols with the Australians.
In the witness box last year, Roberts-Smith told the court he later came to learn that it was not Person 12 who had been stood down for shooting the dog, but maintained the Afghan officer was not on the Khaz Uruzgan mission: “one way or another, Person 12 wasn’t there,” Roberts-Smith said.
Justice Abraham has reserved her decision on the legal privilege of the soldiers’ documents. The trial proper will recommence on Monday, before Justice Anthony Besanko.
