A soldier witness called by Ben Roberts-Smith in his defamation trial has told the court he is separately being investigated for an alleged war crime committed at Darwan, during the same raid on which Roberts-Smith is accused of kicking a handcuffed prisoner off a cliff.
Person 35 spent his third day in the witness box on Friday, and was cross-examined over the death of a man called Haji Nazar Gul, during an Australian SAS raid on the village of Darwan, in Afghanistan’s Uruzgan province, on 11 September 2012.
He said the allegation he murdered Gul was false – “that report is a lie” he told the court – saying Gul was an armed insurgent he lawfully killed.
But Person 35 said he was aware the allegation Gul was murdered was being investigated by the Office of the Special Investigator, set up by the government to investigate allegations of possible war crimes committed by Australian special forces in Afghanistan.
He said he understood the allegation being investigated by the OSI related to him, and his alleged killing of Gul.
“I am aware that that is being investigated,” he told the court. “I’ve had a false allegation made against me.”
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 were defamatory and portrayed him as committing war crimes, including murder.
The newspapers are pleading a defence of truth. Roberts-Smith denies any wrongdoing.
The federal court heard during cross-examination on Friday that two Afghan men were allegedly killed, by two Australian soldiers, in a building in Darwan village marked by the Australian troops as Compound 31.
The newspapers in their defence allege that on the same mission to Darwan, Roberts-Smith murdered a man called Ali Jan who had been taken prisoner by Australian troops. Roberts-Smith is alleged to have walked Ali Jan, bound in handcuffs and blindfolded, to the edge of a cliff, before kicking him in the chest, causing him to fall more than 10 metres into a dry riverbed.
Having walked down a footpad to the riverbed, it is alleged Roberts-Smith ordered Ali Jan shot dead before his body was dragged to a cornfield.
Australian soldier witnesses have given evidence for the newspapers’ defence that they saw Ali Jan being kicked from the cliff, and three Afghan nationals have also testified for the newspapers over his death.
Roberts-Smith has denied the allegation, telling the court in his evidence the man purported to be Ali Jan was a “spotter” discovered hiding in a cornfield and carrying a radio, who refused an order to stop. He was a legitimate target, lawfully killed in accordance with the laws of war.
Roberts-Smith has 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.
While the death of Ali Jan has been the subject of extensive evidence in this trial, the allegation over the death of Haji Nazar Gul, in a separate compound in Darwan on the same day, has not previously been raised in evidence, and is not part of the defamation trial.
During cross-examination of Person 35 by lawyers for the newspapers on Friday, an ABC article entitled Death in Darwan was entered into evidence. The article quoted Darwan villagers who said two men, one of whom was Gul, were taken into an almond storage room by Australian soldiers and shot dead.
Person 35 said the accounts were “lies”. He confirmed before the court he and another SAS soldier shot the two men, but said the killing was lawful.
“Those two insurgents we engaged in that compound were legally engaged … they were armed.”
Justice Anthony Besanko mentioned to Person 35 the immunity regime available to witnesses, but Person 35 said he did not need an immunity certificate to talk about the incident because, he said, he had done nothing wrong.
Person 35 was also questioned over his legal representation.
He told the court he understood Kerry Stokes, chairman of the Seven Network, and Roberts-Smith’s employer, was paying his legal fees. The fees were actually being paid by Seven, a public company, until the arrangement was revealed in court this week, when Seven asked Stokes’s private company, ACE, to assume the debt.
Person 35 said he was unaware of the arrangement: “My understanding was Mr Kerry Stokes was paying for it.”
Person 35 told the court he approached Roberts-Smith seeking legal representation because he did not trust the free lawyers offered to him by the defence force for his interview with the inspector general of the defence force.
Nicholas Owens SC, acting for the newspapers, put it to Person 35, he was a partisan witness, who believed his legal fees continuing to be met was contingent on him “being on ‘Team Roberts-Smith’” and giving evidence in support of Roberts-Smith.
“That’s incorrect, your honour.”
Owens put it to Person 35 he was “prepared to lie to the court” to support his friend Roberts-Smith.
“That’s incorrect … I am here to tell the truth.”
Roberts-Smith’s first soldier witness, known before court as Person 5, also confirmed during his cross-examination that he was being investigated over the potential commission of war crimes.
Person 5 agreed under cross-examination that a total of five murder allegations had been made against the patrol he served on with Roberts-Smith: including two alleged incidents at Whiskey 108 which form part of the newspapers’ defence in this case.
The other three incidents are alleged to have occurred in 2010 at a compound known as Whiskey 591.
Person 5 told the court he was interviewed by the inspector general of the ADF in 2018 over allegations of war crimes.
Person 35 remains in the witness box. The trial, before Justice Besanko, continues.
