A former Australian soldier has objected on the grounds of self-incrimination to answer questions about whether he shot a prisoner on the orders of his patrol commander, Ben Roberts-Smith, in Afghanistan in 2012.
Federal court judge Anthony Besanko on Wednesday ruled he would not compel the former SAS soldier, anonymised before the court as Person 66, to answer questions about a mission in the village of Syahchow in October 2012.
“I am not satisfied that the interest of justice require that Person 66 give the evidence,” Besanko said.
Person 66 was subpoenaed to give evidence in court by three newspapers defending a defamation action brought by Roberts-Smith, his former comrade and Victoria Cross recipient.
Roberts-Smith alleges the newspapers’ reports portrayed him as committing war crimes, including murder, as well as acts of bullying. The newspapers are pleading a defence of truth. Roberts-Smith denies all wrongdoing.
The court heard that it was alleged Person 66, a former member of Australia’s SAS, had undertaken a single operation under Roberts-Smith’s command to the village of Syahchow, in Uruzgan province, in October 2012.
The newspapers allege in their defence that on the mission Person 66 was “blooded” on the orders of Roberts-Smith after they removed two unarmed prisoners from a compound where the men had been detained and took them to a nearby field.
The defence alleges Roberts-Smith ordered Person 66 to shoot one of the men, and claim that he complied with the order.
The practice of “blooding” new soldiers – essentially an experienced senior soldier ordering a new subordinate to kill an unarmed person – occurred among Australian SAS soldiers in Afghanistan, the newspapers allege.
“‘Blooding’ refers to initiating a person in the practice of killing, or giving them the taste for killing,” the newspapers’ defence states.
Person 66 began giving evidence briefly on Monday and told the court he was temporarily attached to the SAS patrol commanded by Roberts-Smith. But when asked how many missions he’d undertaken under the command of Roberts-Smith, Person 66 objected to answering on the grounds of self-incrimination.
Barrister Jack Tracey, representing Person 66, told the court that the evidence the former soldier was expected to give could tend to incriminate him in an alleged murder.
Besanko said there were reasonable grounds for Person 66’s objection, and told the witness that the court would grant him a certificate under section 128 of the Evidence Act preventing his evidence being used against him in Australian courts.
But Person 66 still objected to giving the evidence – notwithstanding the certificate – requiring the court to consider whether it should require him to do so.
On Wednesday, Besanko ruled Person 66 would not be compelled to answer questions on the Syahchow mission, ruling it did not serve the interests of justice.
Following Besanko’s ruling, Nick Owens SC, acting for the newspapers, put the questions directly to Person 66 on Wednesday afternoon.
“On a mission in October 2012 when you were a member of Mr Roberts-Smith’s patrol, did you shoot a Puc [person under control]?” the barrister asked.
“I object your honour,” Person 66 said.
Asked by the judge whether he was willing to give the evidence under the protection of a certificate, Person 66 told the judge: “I am not willing.”
Owens then asked: “On a mission in October 2012 when you were a member of Mr Roberts-Smith’s patrol, did Mr Roberts-Smith order you to shoot a Puc.”
“I object to answer that your honour,” Person 66 said.
Roberts-Smith has denied the Syahchow allegation. Asked directly during his evidence last year if he had ordered Person 66 to execute a prisoner, Roberts-Smith said: “I did not.”
He told the court that during the mission the bodies of two insurgents were found in a wooded area after a skirmish outside a compound which ended when an Australian soldier threw a grenade into the area where the insurgents were.
“We threw the grenade to ascertain whether or not the insurgents were dead,” Roberts-Smith told the court during his evidence. “We got no response after the grenade went in, and then cleared into the trees or into the vegetation, and there were two insurgents that had been engaged.”
Roberts-Smith’s barrister, Bruce McClintock SC, told the court in 2021 that “the incident in question never happened”.
“The respondents [the newspapers] have proffered no detail of the supposed crime, such as the identity of the victim, the time during the mission when it took place other than – or the place other than – a nearby field; nor, for that matter, is any motive identified,” McClintock said.
Person 66 is the second former SAS soldier who has objected on the grounds of self-incrimination to giving evidence about an alleged blooding incident. A soldier known as Person 4 also refused to answer questions about an operation at a compound called Whiskey 108, in the village of Kakarak, in 2009.
The trial resumes on Thursday morning and is expected to run for several more weeks.
