A former SAS patrol commander has told the federal court that no people were found hiding inside a tunnel during a 2009 SAS raid on an Afghan compound called Whiskey 108, contrary to evidence previously given by several soldier witnesses who were on the mission.
The retired soldier, anonymised before the court as Person 5, gave evidence on Tuesday that two men shot dead during the operation were noted by troops on the operation as “EKIA” – enemy killed in action – legitimately engaged and lawfully killed.
The Whiskey 108 operation, on 12 April 2009, has emerged as a key contest in the defamation trial brought by Victoria Cross winner Roberts-Smith, with the respondent newspapers alleging two prisoners were executed by Australian troops during the mission.
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 are defamatory and portray him as committing war crimes, including murder.
The newspapers are pleading a defence of truth. Roberts-Smith denies any wrongdoing.
The newspapers allege in their defence that that two men – one elderly, the other a disabled man with a prosthetic leg – were pulled from a hidden tunnel found inside the compound.
The defence alleges the elderly man was executed by another soldier on Person 5’s orders, while the disabled man was allegedly executed by Roberts-Smith.
The testimony of Person 5 contradicts those claims.
Person 5 is the first witness-in-reply called by Roberts-Smith. He said on Tuesday he regards Roberts-Smith as a capable soldier and a “very good friend”.
He was Roberts-Smith’s patrol commander on the Whiskey 108 mission in April 2009, when SAS troops were sent in to clear the compound in the village of Kakarak, believed to be an insurgent redoubt and weapons base.
Person 5 said he was in the compound when the secret tunnel was found hidden under long cut grass and a grate. Another smaller Australian soldier removed his body armour and carried his pistol into the tunnel to “clear” it, he said.
“He was in there no more than a couple of minutes. He then came back, stuck his head out and said it was clear,” Person 5 told the court.
Person 5 said that later, as SAS troops worked to secure the compound, “I heard gunshots outside the compound”.
“I ran out of the compound … towards where the gunshots were coming from.”
He said he reached the outside of the compound in about 15 seconds, where he could see Roberts-Smith and another soldier, Person 4, off the north-west corner of the compound. Person 5 said Roberts-Smith told him “we just engaged two squirters to the north”.
“Squirter” was a term used by Australian troops to describe insurgent enemies who tried to flee as Australian troops approached.
Person 5 told the court he asked Roberts-Smith Smith: “Are they EKIA (enemy killed in action)? And he said ‘yes’.”
Person 5 said he informed the troop commander of “two EKIA off the north-west corner of the compound”.
Person 5’s evidence accords with that of Roberts-Smith. In his evidence, Roberts-Smith told the court that there were “no people in the tunnel at Whiskey 108”, and that two men killed during the operation were legitimate enemy targets lawfully engaged and killed in accordance with the laws of war. Roberts-Smith said the man with the prosthetic leg was engaged outside the compound carrying a weapon, and described allegations he had ordered the execution of the elderly man as “completely false”.
But it is at variance with earlier evidence from several SAS soldiers called by the newspapers.
The court has heard similar – though not identical – evidence from five former and serving SAS soldiers that men were pulled from the tunnel and taken into custody by Australian troops.
The newspapers being sued also allege Person 5 and Roberts-Smith were both involved in the death of the elderly man discovered hiding in the tunnel.
In the newspapers’ defence, it is alleged that after the Afghan men were pulled out of the tunnel, Roberts-Smith was present when Person 5 ordered another Australian soldier – Person 4 – to execute the elderly man.
“Pursuant to that order Person 4 placed [the Afghan man] on his knees and shot him in the back of the head. Person 4 was ordered to execute [the Afghan man] so that he could be ‘blooded’,” the defence document states.
The newspapers allege Roberts-Smith “did not say or do anything to encourage Person 5 to withdraw the order or to stop Person 4 following the order”, arguing that he was complicit in, and approved of, the man’s murder.
Another SAS soldier, Person 41, has given a slightly differing account of the alleged murder of the elderly Afghan man, alleging it was Roberts-Smith who gave the order he be executed.
Person 41 told the court Roberts-Smith and Person 4 asked to borrow the suppressor from his weapon, then said: “RS [Roberts-Smith] walked down and grabbed the Afghan male by the scruff of his shirt.”
He said Roberts-Smith walked the man about 2 metres until he was in front of Person 4, “then kicked him in the back of the legs behind the knees until he was kneeling down … RS pointed to the Afghan and said to Person 4 ‘shoot him’.” Person 41 said he stepped out of the compound to avoid witnessing the execution: when he stepped back in, Person 4 was standing above the elderly man, who was dead from a single bullet wound to the head.
In his evidence, Person 5 was asked directly: “Have you ever killed a person who was under confinement?”
“Never,” he replied.
“Have you ever ordered a member of the Australian Defence Force who was under your command to kill a person under confinement?”
“Never.”
Person 4 has already given evidence in this trial, spending five days in the witness box.
While he gave evidence about other SAS missions he participated in, Person 4 objected to answering questions about his actions at Whiskey 108: “I object on grounds of self-incrimination,” he told the court. After intense legal debate over whether he should be compelled to respond, justice Anthony Besanko ruled he did not have to answer.
One soldier witness, known as Person 24, previously told the court that hours before the Whiskey 108 assault, he saw Person 5 in the SAS headquarters.
“Person 5 came to the doorway of our patrol room and he was in a jovial manner, dancing a bit of a jig,” Person 24 said.
“He said that we are going to ‘blood the rookie’.”
Person 24 said he understood the phrase to mean “they were going to facilitate or put [Person 4] … in a position where he could get a kill under his name”. Under cross-examination he defended his evidence against allegations he was lying and motivated by malice: “I’m compelled here to tell the truth”.
Person 5 told the court on Tuesday he had never heard the term “blooding the rookie” until 2018, “just days before I left the SAS”.
Person 5 was asked in court: “During 2009, did you ever say to anyone ‘we’re going to blood the rookie’?”
“Never,” Person 5 responded.
On Tuesday afternoon, Person 5 gave evidence about a fierce daylong firefight at the 2010 Battle of Tizak, for which the SASR was awarded a Battle Honour, and Roberts-Smith the Victoria Cross.
He remains in the witness box. The trial resumes Thursday.
