A former SAS soldier has told Ben Roberts-Smith’s defamation trial that he first heard the allegation that Roberts-Smith kicked an Afghan prisoner off a cliff when he was interviewed by the inspector general of the Australian defence force in 2017.
The soldier, anonymised as Person 32 and called by Roberts-Smith as a witness, was asked by Arthur Moses SC, acting for Roberts-Smith: “When did you first become aware of an allegation Mr Roberts Smith kicked a ‘PUC’ [person under control] off a cliff at Darwan?”
“In the IGADF,” Person 32, who served alongside Roberts-Smith at Darwan, replied. He told the court he had three separate interviews with the inspector general, in 2017 and 2018.
The IGADF, led by Maj Gen Paul Brereton, a judge on the New South Wales supreme court, began investigations in 2015 into allegations of war crimes committed by Australian special forces troops on deployment in Afghanistan.
The Darwan allegation is a key point of dispute in Roberts-Smith’s defamation trial against three Australian newspapers, who he says defamed him in a series of reports that he claims alleged he committed war crimes, including murder.
The newspapers are pleading a defence of truth. Roberts-Smith denies any wrongdoing, including the alleged murder of the prisoner at Darwan.
The court has heard Australian SAS troops were sent into Darwan, in Afghanistan’s southern Uruzgan province, at dawn on 11 September 2012, seeking a rogue Afghan soldier named Hekmatullah who had killed three Australian soldiers at a patrol base three weeks earlier. Hekmatullah was not in Darwan.
The newspapers in their defence allege that, at the end of the mission to Darwan, Roberts-Smith murdered an Afghan farmer called Ali Jan who had been taken prisoner by Australian troops, in a “joint criminal enterprise” with his subordinate, Person 11.
It is alleged that during an interrogation, Roberts-Smith walked Ali Jan, bound in handcuffs and blindfolded, to the edge of a cliff before kicking him in the chest, causing him to fall more than 10 metres into a dry riverbed.
The defence alleges that Australian troops then walked down a zigzag path to the riverbed from where Ali Jan, still alive but badly injured, was dragged to a nearby cornfield, where he was shot either by Roberts-Smith or Person 11.
An Australian soldier has previously given evidence for the newspapers’ defence that he saw the man being kicked from the cliff, striking his face on the cliff as he fell. That soldier told the court he had been ordered by Roberts-Smith to drag the man into the cornfield, where he heard a number of shots and saw Person 11 with their rifle raised.
Two Afghan nationals have also testified for the newspapers they saw Ali Jan kicked off the cliff by a “big soldier”.
Roberts-Smith has denied the allegation, telling the court in his evidence the man purported to be Ali Jan was a “spotter” discovered hiding in a cornfield and carrying a radio, who refused an order to stop. He was a legitimate target, he said, lawfully killed in accordance with the laws of war.
Roberts-Smith has maintained he could not have killed the man as alleged because there was no cliff from which to kick him. “There was no cliff … there was no kick,” he told the court.
Person 11, who has given evidence for Roberts-Smith, backed his version of events at Darwan, saying the man had been discovered hiding in the cornfield and “moving in a very suspicious manner”.
“I assessed this person posed a direct threat to the extraction of our forces so I engaged.”
Person 32, who is no longer in the defence force, remains in the witness box under cross-examination. He has been mentioned in previous evidence before the court.
An earlier witness for Roberts-Smith, a soldier known as Person 35, told the court he knew he himself was being investigated, by the office of the special investigator, over an alleged murder of a man in another compound in Darwan during the same mission.
Person 35 told the court he and Person 32 shot two men in a compound, but said the killing was lawful.
“Those two insurgents we engaged in that compound were legally engaged … they were armed.”
Referring to media reports about the alleged incident, person 35 said: “That report is a lie.”
“I am aware that that is being investigated. I’ve had a false allegation made against me.”
Person 32 told the court he had lawfully shot and killed a man alongside Person 35, in line with the Australian troops’ rules of engagement. “They were armed and posed a threat to us,” he said.
The incident involving Persons 35 and 32 is not part of the newspapers defence, but was raised in cross examination by the newspapers’ barrister.
Under cross examination last month, a former senior SAS soldier, Person 5, told the court he was aware of an allegation he had “blooded” Person 32 during a mission on a compound known as Whiskey 591 in West Dorafshan in 2010.
The newspapers have previously alleged that “‘blooding’ refers to initiating a person in the practice of killing, or giving them the taste for killing,” usually by an experienced senior soldier ordering a new subordinate to kill an unarmed person.
In court, Person 32 denied ever being blooded or taking part in the practice, or hearing the term.
Person 5 also said the alleged event never happened: “We don’t blood people.”
Earlier on Monday, in a separate court action brought by Roberts-Smith against his ex-wife, Emma Roberts, the former soldier lost an application to appeal against an earlier decision over his email account with RS Group, the company he founded to handle his speaking and other public engagements, of which Emma Roberts was a director.
Roberts-Smith was seeking a second chance to question his former wife over his claims she accessed confidential emails and passed them on to the media organisations defending the defamation case.
The VC winner lost his first attempt in January after a federal court judge found his “litany of complaints” against Emma Roberts were based on nothing more than “bare possibilities and suspicions”.
Roberts has denied she obtained any material through covert means, and the three newspapers sued for defamation have said she did not provide them with any material for the ongoing lawsuit.
On Monday, Justice Michael Wigney declined to provide leave to the former soldier to appeal January’s decision to the full bench of the federal court.
The defamation trial, before Justice Anthony Besanko, continues.