There were no people in the tunnel at Whiskey 108, a former SAS soldier has told the federal court, backing Ben Roberts-Smith’s version of events of a fiercely contested Australian military mission in Afghanistan.
The crude, hand-dug tunnel, hidden inside a compound known as Whiskey 108 in the village of Kakarak, in Afghanistan’s Uruzgan province, has become a critical contention in Roberts-Smith’s high-profile defamation trial.
A soldier anonymised as Person 35, called by Roberts-Smith, told the court he was the soldier who went into the tunnel to seek out any insurgents who might have been hiding within it.
He said there was nobody inside, backing Roberts-Smith’s version of events, which stands in direct contradiction to several other Australian soldiers who have testified two men found hiding in the tunnel were later found dead.
A simple, fundamental question has dominated weeks of a complex, sprawling trial: were there any people in the tunnel at Whiskey 108?
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.
Australian SAS troops raided the Whiskey 108 compound, in the Taliban redoubt of Kakarak, in the late afternoon of 12 April 2009, after Australian army troops had fought a day-long engagement with insurgent fighters there.
An airstrike had bombed the compound just prior to the SAS incursion.
It is not contested two men were killed during that raid: a disabled man with a prosthetic leg and an elderly man. But irreconcilable versions of events have emerged about how they were killed.
The newspapers allege in their defence that the two men were discovered hiding in a small tunnel inside the compound, where ordnance was also found. The men were brought from the tunnel and taken into custody before, the newspapers allege, Person 5 ordered a junior soldier, Person 4, to execute the elderly man, a command obeyed with the acquiescence of Roberts-Smith.
Person 4 was a new soldier to the regiment and was allegedly being “blooded” – ordered to make his first kill on the battlefield.
The newspapers say the man with the prosthetic leg was murdered by Roberts-Smith, who, the court has been told by witnesses, “frog-marched” the man outside the compound and threw him to the ground before machine-gunning him to death.
The court has heard from a number of Australian soldiers on the raid that day – known as Persons 43, 40, and 42 – who were subpoenaed by the newspapers and have testified they saw men pulled from the tunnel.
Three other soldiers – Persons 14, 41, and 24 – have told the court they witnessed the disabled man’s execution. One soldier – Person 41 – has given evidence he heard Person 4 ordered to kill the elderly man, though the newspapers’ and the soldier’s versions differ slightly as to which soldier gave the order.
During his evidence last year, Roberts-Smith repeatedly told the court there were no people discovered in the tunnel and that the claims the men were unlawfully killed were false. “There were no people in the tunnel,” he told the court four times.
Roberts-Smith said he shot and killed the man with the prosthetic when he saw him running – carrying a weapon and posing a potential threat to Australian soldiers. Roberts-Smith said the man was an insurgent and a legitimate target killed within the laws of war.
In his evidence, Roberts-Smith said the elderly man, also an insurgent, was shot by another Australian soldier whose identity he, to this day, does not know. He credits the soldier with saving his life.
Roberts-Smith’s version of events has been backed by another soldier, Person 5, and now by Person 35.
On Wednesday, Person 35 told the court the tunnel was “just a rough-cut hole with earth steps down under the ground”. He said he removed his body armour and drew his pistol – his M4 rifle was too large to take into the hole – and put on night-vision goggles to go into the tunnel.
He told the court the initial entry was small, but, having turned left, the tunnel opened up into a larger underground room where ordnance, communications devices and documents were stored.
Roberts-Smith’s barrister, Arthur Moses SC, asked Person 35: “Did you locate or observe any individuals in the tunnel?”
“No,” Person 35 replied.
Previous evidence from five Australian soldiers called by the newspapers insisted Afghan men were found hiding in the tunnel, and brought out, unarmed, before being detained.
A soldier known as Person 42 told the court the men “were compliant …they came out unarmed, they came out freely, relatively quickly once given commands – the ‘hands up’ order.”
The killing of the man with a prosthetic leg has become notorious in reportage of alleged Australian war crimes during the war in Afghanistan: the man’s leg was souvenired by another soldier and taken back to the SAS’s unofficial bar on base, the Fat Ladies’ Arms, where it was used as a macabre war trophy.
Dozens of pictures have circulated of Australian soldiers drinking from the leg. Person 35 told the court Wednesday he drank from the “novelty drinking vessel”.
The court has also heard previously Person 35 dressed up as a member of the Ku Klux Klan during parties at the SAS’s unofficial bar on base, the Fat Ladies’ Arms.
Person 35 also fought at the day-long Battle of Tizak on 2010, for which the SASR was awarded a Battle Honour, and Roberts-Smith the Victoria Cross.
The trial, before Justice Anthony Besanko, continues.