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Rick Morton on the latest evidence in the Ben Roberts-Smith defamation case.

The witnesses for Ben Roberts-Smith

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Right now, one of Australia’s most decorated soldiers, Ben Roberts-Smith, is suing Nine newspapers over a series of articles alleging war crimes. 

As the case has played out, we have learned extraordinary details about Australia’s most secretive operations during the war in Afghanistan, with evidence being aired in civil court.  

Some witnesses have told the court they saw Ben Roberts-Smith unlawfully kill people — others say he was acting inside the rules of engagement.

Today, senior reporter for The Saturday Paper, Rick Morton on the latest evidence in the Ben Roberts-Smith defamation case. 

Guest: Senior reporter for The Saturday Paper, Rick Morton.

Read Transcript

[Theme Music Starts]

 

From Schwartz Media, I’m Ruby Jones, this is 7am.

 

Right now, one of Australia’s most decorated soldiers, Ben Roberts-Smith, is suing nine newspapers over a series of articles alleging war crimes. 

 

As the case has played out we have learned extraordinary details about Australia’s most secretive operations during the war in Afghanistan, with evidence being aired in civil court.  

 

Some witnesses have told the court they saw Ben Roberts-Smith unlawfully kill people — others say he was acting inside the rules of engagement.

 

Today, senior reporter for The Saturday Paper, Rick Morton on the latest evidence in the Ben Roberts-Smith defamation case. 

 

It’s Tuesday May 24.

 

[Theme Music Ends]

 

RUBY:
So, Rick, you've been reporting on the lawsuit brought against nine newspapers by former Special Forces soldier Ben Roberts-Smith. It's a fascinating case. What is it about, though? At its core. 

 

RICK:
It's a defamation case. And Ben Roberts-Smith, who was this high profile, very decorated member of the Australian Special Forces who served in Afghanistan, is suing nine newspapers over a series of articles that alleged war crimes, as well as domestic abuse and bullying. 

 

And people are calling it the defamation trial of the century because Ben Roberts-Smith denies all wrongdoing and he is fighting this until the very end. 

 

A lot has come out of this trial about Ben Roberts-Smith. And finally in the last month or so, Ben Roberts-Smith has had the chance to put his side of the story in this case for the public to see. And it has all come down to a handful of former soldiers who served with him in the SAS, which is the special air services, like the most elite military regiment we have. And so while we're talking about this as a defamation action, it has actually brought out all of these former soldiers to testify, both for and against the allegations put in the Nine newspapers. And the revelations have been pretty staggering. 

 

RUBY:
Okay. So before we get to some of that testimony, can you just tell me a bit more about Ben Roberts-Smith, the person, as you say, he's this ex SAS soldier, he’s highly decorated. But what else do we know about his life? 

 

RICK:
Yeah. now he's from Perth, he's from Western Australia is actually from a really quote unquote good family in Western Australia is the son of a former Supreme Court of Western Australia judge. They're well-regarded in Perth society. He's this enormous towering figure  And you know, he's been in the Army, he's risen up through the ranks. He joined the SAS, he became patrol commander on all of these missions in Afghanistan.

 

And then it was so decorated at the end of it that he was even given the Victorian Cross, which is one of the highest military honour in Australia and there are so few of them that had been awarded.

 

And then in 2018, nine newspapers released this series of articles alleging the war crimes, alleging these horrible, horrible acts that were committed by SAS soldiers allegedly deployed in Afghanistan. And that's when everything changed for Ben Roberts-Smith.

 

RUBY:
Okay. So these are the articles containing allegations of war crimes that Ben Roberts-Smith denies and he's suing nine newspapers. So tell me about what they said. What did nine newspapers publish and how are they trying to defend their journalism? 

 

RICK:
Yeah. So the investigative journalists at the newspapers, Nick McKenzie and Chris Masters in particular, published a series of articles in June 2018.

 

Now these stories allege that SAS soldiers, including Ben Roberts-Smith, committed war crimes, including the murder of several Afghan civilians who were unarmed or imprisoned and handcuffed at the time, who were essentially extrajudicially killed outside the rules of engagement. 

 

Now they allege that Ben Roberts-Smith committed six murders on five separate occasions while deployed to Afghanistan as a member of the SAS. Now, he was also accused of bullying fellow soldiers and committing domestic violence. Ben Roberts Smith it should be noted here, has denied all wrongdoing. 

 

Now, in defending the case, Nine newspapers are pleading a defence of truth. They are basically arguing that the articles published aren't defamatory because they are based, in fact, because they say they actually happened.

 

That's one of the hardest defences to prove in a defamation trial. And to make that true defense, they've been calling witnesses. We've heard from Afghan villagers testifying all the way from Afghanistan as well as former SAS soldiers. 

 

RUBY:
And it's very unusual to hear from people in the special forces, hear them talk openly or at all about what happened in Afghanistan. But now in this case, we suddenly got people from this very secretive, very elite arm testifying under oath about what happened during operations in Afghanistan. And so what are they saying? What have we learnt? 

 

RICK:
So one key allegation that lawyers for Nine newspapers have been defending in court is that in September 2012, in Dawan, Roberts-Smith murdered an unarmed labourer and father named Ali Jan by kicking him off a cliff into a dry riverbed, then shooting him or ordering a subordinate to shoot him.

 

Now, Ali Jan's body was then allegedly dragged into a cornfield and a radio was allegedly planted on his corpse. The radio is key because if he had a radio that would have backed up the version of events that Ben Roberts-Smith and a subordinate gave, which was that he was a Taliban spotter and potentially posed a threat. 

 

Now, as part of the newspaper's defence, the trial heard evidence from a former SAS soldier, anonymous before the court, we can't reveal any of their identities, as Person 4.

 

Person for told the court that he saw Roberts-Smith during that operation kick the unarmed, handcuffed Afghan man in the chest, quote, catapulting him off a cliff. 

 

He said, I saw the individual smash his face on a rock and I saw the teeth explode out of his face. 

 

And then Person 18, his another former SAS soldier took the stand. He gave evidence that person four broke down in front of him and told him what happened at a drinking event back in 2012. So this is well before the allegations were made and in public. 

 

Roberts-Smith has consistently denied that version of events. 

 

Now his lawyer, Arthur Moses, described this version of events as false and that these allegations made against his client were motivated by jealousy.

 

And look Person 4 and Person 18 haven't been the only SAS witnesses who have testified in court. 

 

Ben Roberts-Smith Lawyers also have called a number of other former members to support his version of events. And we finally got to watch it unfurl when the star witness was called. 

 

RUBY:
We'll be back after this.

 

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RUBY:
So, Rick, you've been telling me about some of the testimony that we've been hearing from former members of the S.A.S. who are testifying for nine newspapers. But what about those who are testifying for Ben Roberts-Smith? What have they said as they have come to court? 

 

RICK:
Yeah. So it's been pretty astonishing stuff just to kind of listen to the backwards and forwards essentially between the two different teams.

 

Ben Roberts-Smith First key witness, the very first one that he got to call and his defense was arrested for assault and conceded he is actually a suspect in war crime investigations happening now. 

 

RUBY:
Right. Okay. 

 

RICK:
So another witness called to defend Ben Roberts-Smith or at least, you know, argue that these allegations are not true. Person 35 is also a war crime suspect. 

 

Now Person 35 admitted to wearing a Ku Klux Klan outfit to an SAS bar, this kind of makeshift bar they had called the Fat Lady's Arms while on tour in Afghanistan. And it's a costume he said he only roughed up because he was short of supplies. And he thought it would be funny because another soldier who was a friend of his was coming in blackface. Now, the court heard that on that night a Person 35 wasn't disciplined for his actions. Instead, he won best dressed. Make of that what you will. It was a pretty bizarre turn of events in the kind of testimony of Ben Roberts-Smith's own witnesses. 

 

And then we got to Person 11. 

 

This is the one that everyone had been waiting for. Ben Roberts-Smith’s star witness, personal friend still, finally took the stand and this was slated to be the best shot the highly decorated former Special Services soldier would have at clearing his name. 

 

RUBY:
Right. Okay. So tell me about what this person, star witness, Person 11 said then when he took the stand. 

 

So this all goes way back to the killing of Ali Jan in Darwan, which we heard about from the witnesses who were called by nine newspapers. 

 

So Person 11, he reported to Ben Roberts-Smith in Afghanistan in 2012. He served in his patrol on key missions in which Afghan nationals and unarmed prisoners were allegedly murdered outside the rules of engagement. 

 

And this witness supported the Ben Roberts-Smith version of events. In fact, they were very closely aligned. 

 

Person 4 this is very interesting was the best man at Person 11 wedding said they were really close. They have since fallen out and they haven't spoken in years. But Person 11, the star witness is still really good friends with Ben Roberts-Smith. It's just some of the personal stuff is important to keep in mind. 

 

Now Person 11 says that it wasn't an extrajudicial killing or a killing outside the rules of engagement at all. They were sweeping compounds in Darwan. The extraction helicopters were on their way. They'd finished this little mission and the helicopters were on their way. And what happens every time you're about to extract is that you need to clear the area, make sure there's no Taliban or insurgents or potential threats. 

 

Now, Person 11 says that while he was scouting the area, preparing for extraction back to base, he says he saw what was a potential Taliban spotter moving in an erratic, quote unquote manner through a cornfield about 15 metres away from him. Now, Person 11 told the court that the spotter, or Ali Jan, as we know it is, had been carrying a radio and refused an order to stop. 

 

He was a legitimate target, according to Person 11, who was shot dead in a firefight in accordance with the laws of war, not a handcuffed prisoner, as the witnesses for nine newspapers had said. 

 

Now, this is really interesting because under cross-examination, Person 11 was asked, well, how much of this person could you see in the cornfield? He's 15 meters away. And he said, I could see him moving through the field. 

 

And the QC for Nine newspapers said how high was the crop? And he said between five and seven feet. 

 

He said, Well, could you see the insurgent above the corn? And Person 11 said, No, I couldn't. 

 

And he said, Well, so what you're telling me is that you somehow saw a radio in the hand because that's what he testified, a radio in the hand of this Taliban, quote unquote, spotter through 15 metres of five to seven feet high cornfield. 

 

And it's like how you tell me that's what you saw? And Person 11 said, it's what I saw.

 

RUBY:
Right. Okay. 

 

RICK:
But of course, Nine newspapers were saying, well, that doesn't really sound like you thought on the radio. It sounds like you put it there. 

 

RUBY:
Okay. It's interesting, because we have these two different accounts of what happened to this man who died. And I suppose ultimately then it's up to the judge to decide which accounts they they're going to go with. 

 

RICK:
Yeah, I mean, There are plenty more people slated to give evidence and maybe we will learn even more. Now, the fascinating thing about this defamation case is that so much more detail than was originally published by Nine newspapers has been publicly aired. In fact, we've had access as the public to stuff that is typically like so deeply classified by the military and never makes it into the public realm. But the judge has ordered this stuff to be tendered into evidence. 

 

But equally, there have been so many sessions of closed court where not even the journalists have been able to witness what goes on in there. And you can only begin to imagine the depth of the sensitivities there. 

 

So it's pretty wild stuff. It's certainly the most insight we've ever had into the way the SAS operates. And at one point, the judge had to order that YouTube videos of the hearing that were being put online be stopped because the Commonwealth had made an application saying, we think there are foreign actors going through this court case, through these videos, trying to identify soldiers here based on what information was available. 

 

So there was an order made when I was watching this case and suddenly we've had to they've had to stop putting it online. So this is like not just a huge case in Australia. It's huge case being watched around the world. 

 

RUBY:
That's so interesting. And obviously, you know, this is really about Ben Roberts-Smith trying to clear his name. It's a defamation case, but because we're talking about alleged war crimes, is there a scenario where evidence that's unearthed during this defamation case is used to to be able to prosecute allegations of war crimes? 

 

RICK:
Yes. Yes, there is.

 

In fact, one of the witnesses had been Roberts-Smith was asked to comment on whether he was there for this particular alleged murder and refused and was able to not give evidence on the grounds that it would implicate him in a murder. I mean, that was the reasoning.

 

So we know that these investigations happening parallel to this defamation case are still in the works and they're moving slowly, but they are moving. And the defamation trial might finish beforehand, but it's not the end of the matter by any stretch. 

 

RUBY:
Rick, thank you so much for your time. 

 

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RUBY:
Also in the news today, 

 

Labor leader Anthony Albanese has been sworn in as Australia’s 31st prime minister.

 

Archival Tape -- Anthony Albanese:
“I am incredibly honoured and humbled to have been sworn in as Australia's 31st Prime Minister. Australians have voted for change.” 

 

RUBY:
On Monday, Penny Wong, Jim Chalmers, Katy Galalgher and Richard Marles were also sworn in as an interim ministry in time for Albanese to depart to Tokyo for a summit with international leaders.

 

Archival Tape -- Anthony Albanese:
“We will return on Wednesday and set about implementing our agenda, our agenda that received the endorsement of the Australian people and our National Reconstruction Fund. Our Powering Australia plan to deal with the opportunities that come with acting on climate change.”

 

RUBY:
Standing in front of newly-erected Aborginal and Torres Strait Islander flags at the briefing podium at parliament house, Albanese confirmed that even if Labor does not reach outright majority, enough returning crossbenchers have promised to support supply for the Labor government

 

Archival Tape -- Anthony Albanese:
“And I do believe that we can do politics better and I hope to do so.” 

 

RUBY:
And liberal insiders have confirmed that former defence minister, Peter Dutton has firmed up numbers to become the new leader of the Liberal Party.

 

Liberal MP Alan Tudge went on Sky News on Monday calling for Peter Dutton to become the leader of the Party. Tudge said he believes Dutton is a person of immense character and that he will be “incredibly effective.”

 

I’m Ruby Jones. This is 7am, see you tomorrow.

 

Host

Ruby Jones is an investigative journalist and host of 7am.

Guest

Rick Morton is The Saturday Paper’s senior reporter.