A former SAS soldier has sought to avoid answering questions over allegations he murdered an unarmed Afghan civilian during a raid by Australian troops in 2009, telling the federal court “I object on grounds of self-incrimination”.
The evidence of the former soldier, anonymised before court as Person 4, came as part of a defamation action brought by his former comrade, Victoria Cross recipient Ben Roberts-Smith.
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times over reports he alleges are defamatory and 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 any wrongdoing.
The newspapers claim in their defence that Roberts-Smith ordered the alleged murder of an elderly Afghan male by Person 4 during a raid on a compound called Whiskey 108, in the village of Kakarak on 12 April 2009.
Another Australian SAS soldier – known as Person 41 – previously gave evidence that two Afghan men, one elderly, were discovered hiding from Australian troops in a secret tunnel in a courtyard inside the Whiskey 108 compound.
Person 41 said when the two men were found, Person 4 and Ben Roberts-Smith borrowed the suppressor from his weapon. Person 41 told the court he saw Roberts-Smith grab the elderly man “by the scruff of his shirt”, walk him until he was in front of Person 4, and force him to his knees.
“RS [Roberts-Smith] pointed to the Afghan and said to Person 4, ‘shoot him’,” Person 41 told the court.
Person 41 said he stepped into a room off the compound to avoid seeing what he believed was about to occur. He said he heard a muffled round fired from an M4 rifle, and waited “15 or so seconds” before stepping back into the courtyard.
He said Roberts-Smith was no longer in the courtyard, but Person 4 was standing above the Afghan male, who was dead from a single bullet wound to the head. Roberts-Smith has previously told the court the allegation he had ordered the man shot was “completely false”.
Person 4, who was medically discharged from the defence force last year, was asked by Arthur Moses SC, representing Ben Roberts-Smith: “Are you aware that the respondents in this case [the newspapers] have alleged you murdered an unarmed Afghan male on 12 April 2009?”
“Your honour, I object on grounds of self-incrimination,” Person 4 told the judge.
After vociferous legal debate, Justice Anthony Besanko ruled Person 4 was required to answer the question.
Person 4 said “yes”, he was aware he had been accused of murder.
Moses asked Person 4 whether he was anxious that he had been subpoenaed – “unwillingly” – to give evidence in the trial brought by his former comrade.
“You have been anxious that the respondents may put to you their allegation that you unlawfully killed an Afghan male on 12 April 2009.”
Person 4 objected to answering again: “My only hesitation is in fear of incriminating myself.”
The judge, this time, did not compel Person 4 to answer the question.
“Thank you, your honour,” he replied.
Much of Person 4’s testimony focused on his mental health following his military service, which included seven deployments to Afghanistan with the SAS.
The judge ordered the suppression on reportage of the former soldier’s health conditions, and the names of the medications he has been prescribed.
But Moses told court Person 4 has suffered from “flashbacks, nightmares, distressing memories of traumatic events” following his military service.
Person 4 told the court he suffered “recurring thoughts … with that comes a feeling of dread and … flashbacks sometimes”.
He agreed with Moses that he sometimes experienced memory loss.
“I think the minutiae of things was fading away, small details – large details, definitely not,” he said.
He denied assertions by the barrister that he experienced “hallucinations”, was “hearing things that are not real”, was worried “someone is trying to harm you,” or heard “people screaming”.
He also denied experiencing “any confusion about events you think you’ve experienced”.
Moses told the court Person 4’s health issues were exacerbated by being subpoenaed by the newspapers to give evidence.
“We’re talking about a vulnerable person with significant mental health issues, with assertions being made, openly, that this person murdered an unarmed Afghan male on 12 April 2009.”
Moses told the court a “side deal” had been done between Person 4 and lawyers for the newspapers, whereby the newspapers’ lawyers had agreed not to question Person 4 about the events at Whiskey 108, in exchange for Person 4 giving evidence about another raid at Darwan in 2012.
In that raid, Roberts-Smith is alleged to have kicked a handcuffed, unarmed civilian off a cliff before the man was shot dead by another soldier under Roberts-Smith’s command.
Person 4 told the court he had seen Roberts-Smith kick the handcuffed man off the cliff: “I saw the individual smash his face on a rock, and I saw the teeth explode out of his face.” Person 4 said Roberts-Smith ordered him and another subordinate to drag the man under a tree, where he was shot by the other soldier after discussion with Roberts-Smith.
Roberts-Smith has previously told the court this version of events could not have happened because there was no cliff and the man killed was an enemy spotter, lawfully killed after he was encountered hiding in a field.
Moses said the “transaction, arrangement, side deal, whatever they wish to call it” struck between Person 4 and the newspapers’ legal team undermined the credibility of his evidence.
“The witness is, in effect, being influenced to give evidence, in exchange for [lawyers for the newspapers] not seek to have him compelled to answer questions about an alleged murder. That goes to his [Person 4’s] credibility and the reliability of his other evidence.”
He said the striking of a pre-trial arrangement was highly improper and had been done without the knowledge of the court. He said the newspapers’ lawyers had said, in effect, “we’ll take this from you, so we can sink Mr Roberts-Smith in this trial, but we won’t ask you about your murder”.
Nick Owens SC, acting for the newspapers, has argued there was no agreement, nor any improper arrangement, merely that he had made a forensic decision not to press certain questions if the witness objected.
During cross-examination, Person 4 told the court he was approached by members of the media to talk about events in Afghanistan, but he did not reply. He told the court he believed an SAS comrade, Person 6, was encouraging people to speak with the media “to discredit Ben Roberts-Smith”. He agreed with Moses that Person 6 “wanted to bring Mr Roberts-Smith down”.
Person 4 remains in the witness box. The trial continues.
