Ben Roberts-Smith: first Afghan witness tells court he saw ‘a big soldier’ kick his uncle off a cliff

“A big soldier”, an Australian SAS trooper, kicked a handcuffed Afghan villager down a steep embankment, before the man’s body was later seen being dragged into an orchard, a court has heard in a pivotal day of evidence in Ben Roberts-Smith’s defamation trial.

The first Afghan witness in the trial, Mohammed Hanifa Fatih, appeared by video link from Kabul. He told the federal court he and his uncle Ali Jan were captured and handcuffed by Australian troops in the village of Darwan on 11 September 2012. He said he saw Ali Jan being kicked down a steep embankment, and his body was later found near an orchard.

Australian troops were helicoptered into the village, hunting a rogue Afghan National Army sergeant named Hekmatullah, who had shot dead three Australian soldiers a fortnight earlier.

Roberts-Smith, a Victoria Cross recipient and one of the most decorated soldiers in Australian military history, is suing three newspapers for defamation over a series of reports he alleges are defamatory and portray him as committing war crimes, including the alleged murder of Ali Jan. Roberts-Smith denies all allegations against him.

Hanifa’s evidence before the court Monday concerned a key allegation against Roberts-Smith, that he murdered a handcuffed Ali Jan, by kicking him off a small cliff then shooting him, or ordering a subordinate to shoot him. Roberts-Smith denies this, earlier telling the court that on that day he shot at an alleged “spotter” about 2 metres away during a firefight.

Through an interpreter, Hanifa told the court “a big soldier who was wet up to here” – gesturing to the bottom of his ribcage – “and with sand from the river on his uniform” punched and kicked him repeatedly as he interrogated him, while he was handcuffed.

Earlier witnesses in this trial have described Roberts-Smith as “a tall, imposing, warrior-like figure”. The court has also heard from Roberts-Smith himself, that earlier in the raid, he had swum, alone, across the nearby Helmand River to pursue and kill a suspected insurgent.

Dressed in an olive-green peraahan tunbaan and black vest, Hanifa described in detail the layout of Darwan, where he has lived his whole life, and the Australian raid on his village.

He and his step-uncle Ali Jan, who was visiting from Bagh village three hours’ walk away, were leading donkeys to the mountains, when soldiers arrived, firing shots that sent them retreating back to a guesthouse in the village, where they sat and waited for the troops to arrive.

Hanifa said a military dog arrived first, which frightened his daughter. Hanifa said he was holding his daughter when the Australian troops arrived: one soldier grabbed him by the neck and tied his hands behind his back.

Ali Jan was arrested and handcuffed alongside him. The “big soldier” assaulted both Hanifa and Ali Jan as he interrogated them, asking them if they were Taliban or knew Hekmatullah.

Both said they had no connection with the Taliban, and had never seen Hekmatullah. Ali Jan said he was affiliated to Matiullah Khan, a since-assassinated Uruzgan warlord and police chief, who was Australia’s key ally in the province.

A third man, Man Gul, who will give evidence later in this trial, was also interrogated nearby.

Hanifa said he saw the big soldier with the wet, sandy uniform kick Ali Jan in the chest, causing the handcuffed man to fall down a steep embankment into a dry creek bed.

“He was rolling down, rolling down until he reached the river,” Hanifa told the court. Hanifa said he lost sight of Ali Jan as he rolled down the embankment, but later heard gunshots being fired, and saw Ali Jan’s body being dragged by two soldiers “to the berry trees” nearby.

Hanifa said once the Australian soldiers left, he was untied by a woman in his village and he discovered Ali Jan’s body.

Hanifa said the Australian soldiers planted a radio on Ali Jan’s body – a practice known as “throwing down”.

“By God, he had nothing with him. He had no equipment with him … They put those things with his body.

“These are lies.”

Asked if Ali Jan had any connection to the Taliban, Hanifa said he did not.

“No, nothing like that.”

During cross-examination, Roberts-Smith’s barrister Bruce McClintock accused Hanifa of confecting his evidence.

“What I said is true,” Hanifa replied. “I saw these things.”

Amid a rapidly deteriorating security situation in Afghanistan – Hanifa’s evidence was heard by a secure line from a Kabul law firm.

He has been living, along with three other Afghan witnesses in this trial, in a safehouse in the Afghan capital for a number of weeks waiting to give evidence.

The alleged murder of Ali Jan in Darwan on 11 September 2012 is the most high-profile of the allegations against Roberts-Smith.

In the newspapers’ defence documents before court, it is alleged that Ali Jan was among a number of “fighting age males” handcuffed and held as “persons under control” during the SAS raid on the village on 11 September.

As helicopters were coming to “extract” the Australian soldiers, Roberts-Smith allegedly took Ali Jan to the edge of a small cliff or embankment, about 10 metres high, and forced him into a kneeling position.

Roberts-Smith is then alleged to have “kicked him hard in the midriff causing him to fall back over the cliff and land in the dry creek bed below. The impact of the fall to the dry creek below was so significant that it knocked Ali Jan’s teeth out of his mouth.”

According to the defence, Ali Jan was then “shot multiple times”, either by Roberts-Smith, or by a soldier under his command, anonymised in court documents as Person 11.

Roberts-Smith told the court the killing, as alleged, never happened, and he had never killed an unarmed prisoner in his military career.

He said at the end of the raid on Darwan on that day, he was following Person 11 walking along a dry creek bed towards the helicopter extraction point.

Person 11 climbed an embankment and immediately opened fire upon an alleged “spotter” – a forward scout who reports soldiers’ movements back to insurgents – who was hiding in a cornfield.

Roberts-Smith said he climbed the embankment to assist Person 11 in the firefight and also fired at the man, who was about 2 metres away. The man was killed and, Roberts-Smith said, found to be in possession of a radio.

Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of ­reports published in 2018 that he alleges are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes, including murder.

The 42-year-old has consistently denied the allegations, saying they are “false”, “baseless” and “completely without any foundation in truth”. The newspapers are defending their reporting as true.

Cross-examination of Hanifa’s evidence will continue Tuesday.

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