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As the Ben Roberts-Smith defamation case continues, his four star witnesses face their own difficulties in and out of the witness box. By Rick Morton.

Ben Roberts-Smith trial calls next witness

Ben Roberts-Smith arriving at the Federal Court in Sydney on Tuesday.
Ben Roberts-Smith arriving at the Federal Court in Sydney on Tuesday.
Credit: AAP / Dan Himbrechts

In courtroom 21a of the Federal Court of Australia, Ben Roberts-Smith sits in the furthest corner and watches his star witness and personal friend take the stand.

This will be the best shot the highly decorated former Special Air Services (SAS) soldier has to clear his name, more than four years after a series of newspaper reports in The Sydney Morning Herald, The Age and The Canberra Times alleged Roberts-Smith committed war crimes while serving in Afghanistan.

The SAS trooper in the witness box cannot be named for national security reasons. He is Person 11, who reported to Roberts-Smith in Afghanistan in 2012, serving in key missions in which Afghan nationals and unarmed prisoners were allegedly murdered outside the rules of engagement.

Roberts-Smith has already called several others to testify for his case in the Federal Court, although those examinations were themselves fraught. His first witness was arrested for assault and conceded he is a suspect in war crime investigations. Another, Person 35, is also a war crimes suspect and was on the stand when a detail key to Roberts-Smith’s story – that an Afghan partner soldier shot a dog and was removed from his troop – was spectacularly debunked.

Person 35 also admitted to winning a fancy-dress competition by wearing a Ku Klux Klan outfit to the SAS bar while on tour. He chose it, he said, because he didn’t want to buy a costume online and it was the “easiest to make” at short notice.

In case that explanation didn’t suffice, he added, “I knew another person was coming as blackface and I thought it would be funny if I came as a Klansman.”

When another witness for Roberts-Smith conceded that the detail about the dog’s shooting was untrue, the barrister for the newspapers, Nicholas Owens, SC, contended that a number of these witnesses – all of whom had near-identical versions of the same “demonstrably false” story – had colluded in their evidence.

 

Much of this week’s evidence concerned a mission to Darwan. In this village, the press reports alleged, Roberts-Smith kicked a handcuffed Afghan prisoner off a cliff before Person 11 shot and killed the prisoner.

Person 11 rejects this version of events and instead gave evidence that closely aligns with that of his patrol commander. What he saw while scouting the area preparing for extraction back to base, he says, was a potential Taliban “spotter” moving in an “erratic” manner through a cornfield about 15 metres away.

“My assessment was that this person is moving in a very suspicious manner and, under observation, saw this person carrying a radio, which led me to make the assessment that this was a ‘spotter’ who had come, as previously discussed, to try and report on our dispositions and movements,” Person 11 told the court on Tuesday morning.

“From there the individual appeared to be trying to remain concealed, and that our helicopters were on approach, and I assessed that this individual posed a direct threat to our extraction and our friendly forces and so I engaged.”

Person 11 said he could not see Roberts-Smith at this point in time, but he did notice other gunfire come from “my rear right, which I later understood was Mr Roberts-Smith”.

This account conflicts with that of another former SAS soldier, Person 4, who was best man at Person 11’s wedding. In testimony for the newspapers, Person 4 said back in February that the Afghan man wasn’t a spotter, and was already a “person under control”, or prisoner. Person 4 claimed the man was executed, unarmed, by Person 11 after being pushed off a cliff by Roberts-Smith and striking his head on a rock so violently that teeth flew out of his mouth.

Roberts-Smith and Person 11 both deny these allegations.

Under cross-examination, Nicholas Owens questioned Person 11’s account of this “engagement”. Where SAS soldiers identified enemy combatants who strayed outside a “pattern of life” in Afghan towns and villages, Owens was looking for a pattern of misdirection and “lies”, as he put it to the witness.

He asked: “So between you and this spotter was 15 metres of thickly planted crops, correct?”

Person 11, who previously said the crop was “quite thick”, noted that “there was vegetation between myself and the target”.

The witness said that, to the “best of my recollection”, the crop, most likely corn, was about five- to seven-feet high (about 150-210 centimetres).

“You could see the movement through the crop,” Owens asked.

“Yes,” Person 11 said.

“You could see the insurgent above the crop?”

“I don’t recall that I could see above,” the witness said.

Owens was not impressed. “How is it that you could see an insurgent through 15 metres of thickly planted crops that were five- to seven-feet tall?”

Person 11 said simply: “Because I could.”

In the witness’s time line of evidence, read and approved by him before it was filed to the court, Owens noted there was no mention of a radio being spotted on the target in the cornfield.

“You say that you observed the individual to be a fighting-age male who was manoeuvring suspiciously in a cornfield. No mention there of him having a radio, correct? And if you did have a genuine recollection of seeing this man having a radio, you would have mentioned it there, correct?”

Person 11 disagreed.

“Well, look at the next sentence – you say, ‘His pattern of movement suggested that he posed a threat and that he was a spotter,’” Owens said. “None of the factors mentioned in that sentence are radio, correct?”

Person 11 agreed that “a radio is not mentioned in that sentence”.

Owens pressed: “And if one of the matters that had indicated to you that he was a spotter was the fact that he was carrying a radio, you would have mentioned it in that sentence, correct?”

Arthur Moses, SC, acting for Roberts-Smith, pre-empted this line of questioning earlier on Wednesday morning and offered Person 11 an opportunity to “clarify” statements made in his official time line of evidence.

“The way that this reads perhaps could do with some clarity towards the end of those paragraphs. It could be misinterpreted as a retrospective justification for the actions,” Person 11 said.

“Whilst I was responding specifically to allegations at this time, it would be clearer to mention earlier in those paragraphs that the Icom radio was observed. However, when this was prepared, the identification of the spotter implied that these items were present.”

Owens pressed Person 11 further on the time line of evidence.

He called the addition of the radio – which others claim was planted on the body of the man – a “recent invention of yours”, and said that the “reason it is inconsistent is because you cannot keep your false story about this engagement straight, correct?”

Person 11 disagreed.

 

On Thursday morning, continuing under cross-examination, Person 11 was asked about two further missions in Afghanistan in October and November of 2012, in which it is alleged Roberts-Smith ordered the killing of another prisoner and executed another himself with a pistol. Roberts-Smith denies any wrongdoing.

“I want to put to you that you are willing to deny matters that you think are adverse to Mr Roberts-Smith’s case when you are otherwise telling His Honour that you have no clear recollection of the mission at all,” Owens said of an October mission.

Person 11 denied this. “I do have a recollection of the mission because of the parts that stand out to me as remarkable,” he said.

On this mission, a military dog was shot in action and medically evacuated. Roberts-Smith is defending an allegation that he subsequently ordered, via an interpreter, for Afghan forces to shoot a prisoner in their custody, “or I will”.

“What I want to put to you is that you are lying to His Honour when you say that there was nothing remarkable that happened after the dog was evacuated,” Owens said.

Of these events, Person 11 said he “did not observe any of this”.

The witness remembered almost nothing from a mission the following month in Fasil, either, in which Roberts-Smith is alleged to have shot at close range a terrified and trembling teenager who was already in the custody of the SAS.

“You recall, you gave evidence the other day about a ‘killboard’ on the back of your patrol room door,” Owens asked.

“Yes, I did,” Person 11 said.

“And you remember before the last mission that killboard had a tally of 18. And it’s correct, isn’t it, that Mr Roberts-Smith had said words to the effect of ‘Only two to go to get to 20’?”

Person 11 denied this.

Owens also raised a statement Person 11 gave to a military investigator after he witnessed Roberts-Smith punch a subordinate SAS soldier, which itself would be a criminal offence. His statement said simply that the subordinate had been “sternly counselled” by the patrol commander.

“You deliberately omitted any mention of the fact that Mr Roberts-Smith had hit Person 10,” Owens said. “You were deliberately trying to create the false impression that what happened in the patrol room was legitimate.”

Person 11 said, “Like it or not … I did not consider it to be assault.”

“What I want to put to you is that you are unwilling ever to say anything that you think will reflect poorly on Mr Roberts-Smith. The statement contained an outright lie,” Owens said.

That was not true, the witness said.

 

In his final moments in the witness box on Thursday afternoon, Person 11 conceded he had considered moving overseas “for work”, which would mean he couldn’t be interviewed by the Inspector-General of the Australian Defence Force in relation to war crimes inquiries. The witness accepted that, while receiving support through the Australian Defence Force, he had expressed thoughts of harm or violence against these investigators, but had no intention to act on such sentiments, which were part of his therapy work.

“But what I want to put to you is that the denials that you gave in court yesterday in relation to those questions that I’ve just asked you about are examples of the fact that you are willing to lie…” Owens said.

Person 11 disagreed.

“I am not willing to lie,” he said.

The trial continues.

This article was first published in the print edition of The Saturday Paper on May 14, 2022 as "Person 11 steps up".

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Rick Morton is The Saturday Paper’s senior reporter.

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