We send our guys out to fight for us and then we do this to them. Outrageous.
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One thing is certain when Ben Roberts-Smith stands trial in a criminal court for the alleged murder of detainees in Afghanistan: many of the witnesses against him won’t want to be there, and some will do everything in their power not to be.
Roberts-Smith’s failed defamation case against the Nine Network’s newspapers exposed deep divisions within the Special Air Service, and threatened to expose dark secrets many of the former corporal’s former comrades-in-arms would prefer to stay hidden.
Some who gave evidence in that trial refused to answer questions about their own actions on the grounds they could incriminate themselves in murders.
Others expressed deep regret at being compelled to give evidence against a former member of the “band of brothers” and have suffered severe psychological issues since leaving the SAS.
The same alleged incident was often remembered very differently even by those on the same side in the case.
All of which will become a headache for prosecutors and a potential pathway to acquittal for Roberts-Smith.
The first two criminal charges against Roberts-Smith relate to the alleged killing of two detainees hauled from a tunnel during a raid on a Taliban compound known as Whiskey 108 in Oruzgan province on Easter Sunday 2009.
In the defamation case, Justice Anthony Besanko found – on the balance of probabilities – that Roberts-Smith murdered one of the men by shooting him in the back with a machine gun. That is the first count of the criminal charges: intentionally causing the death of the detainee.
Besanko also accepted – again, to a civil standard – that Roberts-Smith had ordered another trooper to shoot a second, elderly Afghan in the head, in order to “blood the rookie”.
That is the basis of the second criminal charge: “aiding, abetting, counselling or procuring another person to intentionally cause the death of a person on or about April 12, 2009, at Kakarak”.
During the defamation trial some witnesses backed Roberts-Smith’s claim that no one was found in the tunnel and that both the men killed at Whiskey 108 were legitimate targets – one armed with a rifle, the other a “spotter” with a radio.
Those soldiers included the only man who actually entered the tunnel, a slightly-built New Zealander known in the trial as Person 35 who had stripped off his armour and crawled into the narrow space armed only with his service pistol.
The Kiwi told the court there was no one hiding in the tunnel, though he found large amounts of weaponry, including AK 47 variants, ammunition and communication devices.
Roberts-Smith says the Afghan he killed that day – a man with the prosthetic leg – was an armed insurgent he had encountered coming around the corner of the compound.
But one Australian soldier, known as Person 24, told how he had watched Roberts-Smith frogmarch a detainee outside the compound, throw him to the ground and fire a machinegun into his back.
Person 24 said he turned to another SAS soldier, Person 14, who was standing next to him. “I recall saying: ‘Did we just witness an execution?’”
Person 24 became emotional as he made clear his high personal regard for his former friend.
“I still don’t agree with the fact BRS is here, under extreme duress, for killing bad dudes we went over there to kill,” he said.
“I do not want to be here. I find it extremely difficult to stomach having to give evidence against that man (Roberts-Smith) in the corner.”
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Correction Services van carrying Ben Roberts Smith headed towards Silverwater MRRC
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Another soldier, Person 41, gave a slightly different version of events, saying Roberts-Smith flipped the Afghan onto his stomach before shooting him.
Yet another soldier, Person 14, told the court he saw an unidentified Australian soldier march a “black object” outside the compound before throwing it to the ground and opening fire with a heavy-calibre Minimi machine gun.
Person 14 told the court he later saw Roberts-Smith carrying the machine gun.
But notes made by Nine journalist Chris Masters after a 2018 meeting with Person 14, suggested it was not Mr Roberts-Smith but the patrol’s “rookie” who shot the man.
Person 14 told the court Masters’ notes were wrong – insisting that Roberts-Smith was the one carrying the machine gun at Whiskey 108.
The newspapers also claimed Roberts-Smith was present when his patrol commander ordered a junior Australian soldier, Person 4, to execute an Afghan prisoner so the rookie soldier could be “blooded” – initiated by getting them a “kill”.
Nine alleged Roberts-Smith instructed Person 4 to borrow a rifle sound suppressor from another soldier and then watched on as another senior soldier ordered Person 4 to shoot the elderly Afghan in the head.
Person 4 refused to answer questions about his alleged execution of the elderly man in Whiskey 108 on the grounds of self-incrimination.
The prosthetic leg was souvenired as a trophy by another SAS soldier and later, as a drinking vessel at the base’s unofficial bar known as The Fat Ladies Arms.
They were the only witnesses to what occurred after Roberts-Smith allegedly kicked handcuffed shepherd Ali Jan off a cliff at Darwan in 2012.
This incident is the basis for the third criminal charge against Roberts-Smith: aiding, abetting, counselling or procuring another person to intentionally cause the death of a person, on or about September 11, 2012, at Darwan, Oruzgan province, Afghanistan.
The alleged killing was one of the centrepiece allegations in the Nine newspaper stories.
Roberts-Smith and his squad were hunting for turncoat Afghan army sergeant Hekmatullah who had recently killed three Australian soldiers as they played cards in the Australian base.
Late in the mission – just before the soldiers were due to be extracted – Ali Jan was detained and interrogated by Roberts-Smith, the newspapers reported.
Another Afghan detained that day testified that when “the big soldier” said something to Ali Jan, the farmer made the mistake of smiling.
1996
Roberts-Smith, the son of West Australian Supreme Court judge Len Roberts, a former major general, joins the army at age 18
Person 4 gave evidence at the trial that Roberts-Smith took a few steps forward and kicked the man in the chest, sending him sailing over the edge of the cliff.
That soldier, who at the time was Roberts-Smith’s second in command, gave graphic evidence of watching the farmer tumble down the rocky incline and into the dry creek below, shattering his teeth on a rock on the way down.
The soldier said he and Person 11 then dragged the man across the dry creek bed.
As he walked away, Person 4 testified, he heard gunshots ring out. When he turned, he saw Person 11 with his weapon raised and Roberts-Smith watching on.
Roberts-Smith said the cliff incident simply did not happen. Instead, he and Person 11 each recounted how they had engaged and killed a Taliban “spotter” carrying a radio after they had crossed the dry creek bed, as the team was making its way to an extraction point, to be picked up by helicopters.
Person 11 said he saw a man in the cornfields about 20m away “moving in a very suspicious manner”. He fired a burst of three or four rounds at the man with his M4 assault rifle, and realised Roberts-Smith, behind him, was also shooting at the man.
Person 4 was probably Nine’s most important eyewitness in the case and gave compelling testimony on behalf of the newspapers.
But his credibility was tested.
It was his stories of atrocities that first began to filter through the regiment and ultimately to Nine’s journalists. The soldier had fought courageously alongside Roberts-Smith at the ferocious battle of Tizak, for which Roberts-Smith was awarded his Victoria Cross.
While Person 4 was awarded the Medal of Gallantry for his actions at Tizak, he admitted it rankled that Roberts-Smith received the VC.
On the witness stand, he admitted he had been manipulated by other soldiers who had eventually gone to the media with their claims about Roberts-Smith.
But Person 4 remained unapologetic about his evidence against his former friend, Person 11.
Person 11 confirmed that, after suffering a near mental breakdown, he had called Person 4.
“It was brief, but I laid out I was hurt deeply, disappointed, and that I was aware of what was going on and from this time forward our personal relationship was over,” he said.
By the time of the defamation trial, the pair hadn’t spoken in five years.
In this case the Nine newspapers alleged that Roberts-Smith directed Person 66, a rookie soldier, to kill an Afghan prisoner in 2012 as another exercise in “blooding”.
Person 66 allegedly shot an Afghan man on Roberts-Smith’s orders and placed a pistol and ammunition and pistol on the body before photographing it, to claim he was a Taliban combatant.
Liberal MP Andrew Hastie – who was then an SAS officer – gave evidence at the trial that Roberts-Smith had later walked past and commented, “Just a couple more dead c...s.”
Justice Besanko ruled that this allegation was unproven because Person 66 refused to give evidence on the grounds of self-incrimination.
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AFP arrest Ben Roberts-Smith at Sydney airport
Australian Federal Police arrest Ben Roberts-Smith at Sydney airport on Tuesday morning.
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The Nine newspapers raised other allegations over which Roberts-Smith has not been charged.
During the Chinartu mission in October 2012, Roberts-Smith allegedly ordered another soldier “to shoot an Afghan male who was under detention” following the discovery of a weapons cache; with instructions being given to an Afghan soldier who then shot the man “in circumstances amounting to murder”, rendering Roberts-Smith “complicit in and responsible for murder”.
Besanko found the allegation proved, but there was only one alleged witness to the incident.
Roberts-Smith’s appeal to the Full Court of Federal Court last year pointed to the areas his legal team believed were the strongest in his defence.
In the case of the Whiskey 108 allegations, this was that official records from the time that referred to two insurgents having been killed as they fled the compound and that no one had ever challenged that narrative.
As for the other central allegation – that Roberts-Smith had kicked Ali Jan off a cliff in Darwan in 2012, before ordering another soldier to shoot him – Roberts-Smith attacked the evidence of Afghan witnesses from the village and again pointed to accounts of a legitimate engagement in “the official contemporaneous records”.
The Full Court rejected those arguments, but did so on the basis that only proof on the balance of probabilities was required.
Proof beyond reasonable doubt is the standard prosecutors will have to meet when Roberts-Smith fronts up for the battle of his life.
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The Victoria Cross is our Congressional Medal of Honour.
Deep divisions, dark secrets: Ben Roberts-Smith trial to test allegiances
STEPHEN RICEListen to this article
11 min
Gift this article
Make us preferred on Google9 hours ago.
Updated 8 hours ago
One thing is certain when Ben Roberts-Smith stands trial in a criminal court for the alleged murder of detainees in Afghanistan: many of the witnesses against him won’t want to be there, and some will do everything in their power not to be.
Roberts-Smith’s failed defamation case against the Nine Network’s newspapers exposed deep divisions within the Special Air Service, and threatened to expose dark secrets many of the former corporal’s former comrades-in-arms would prefer to stay hidden.
Some who gave evidence in that trial refused to answer questions about their own actions on the grounds they could incriminate themselves in murders.
Others expressed deep regret at being compelled to give evidence against a former member of the “band of brothers” and have suffered severe psychological issues since leaving the SAS.
The same alleged incident was often remembered very differently even by those on the same side in the case.
All of which will become a headache for prosecutors and a potential pathway to acquittal for Roberts-Smith.
The first two criminal charges against Roberts-Smith relate to the alleged killing of two detainees hauled from a tunnel during a raid on a Taliban compound known as Whiskey 108 in Oruzgan province on Easter Sunday 2009.
In the defamation case, Justice Anthony Besanko found – on the balance of probabilities – that Roberts-Smith murdered one of the men by shooting him in the back with a machine gun. That is the first count of the criminal charges: intentionally causing the death of the detainee.
Besanko also accepted – again, to a civil standard – that Roberts-Smith had ordered another trooper to shoot a second, elderly Afghan in the head, in order to “blood the rookie”.
That is the basis of the second criminal charge: “aiding, abetting, counselling or procuring another person to intentionally cause the death of a person on or about April 12, 2009, at Kakarak”.
During the defamation trial some witnesses backed Roberts-Smith’s claim that no one was found in the tunnel and that both the men killed at Whiskey 108 were legitimate targets – one armed with a rifle, the other a “spotter” with a radio.
Those soldiers included the only man who actually entered the tunnel, a slightly-built New Zealander known in the trial as Person 35 who had stripped off his armour and crawled into the narrow space armed only with his service pistol.
The Kiwi told the court there was no one hiding in the tunnel, though he found large amounts of weaponry, including AK 47 variants, ammunition and communication devices.
‘An execution?’
Several SAS soldiers gave evidence for the newspapers that at least two men emerged from a tunnel before they were led away by Roberts-Smith’s patrol.Roberts-Smith says the Afghan he killed that day – a man with the prosthetic leg – was an armed insurgent he had encountered coming around the corner of the compound.
But one Australian soldier, known as Person 24, told how he had watched Roberts-Smith frogmarch a detainee outside the compound, throw him to the ground and fire a machinegun into his back.
Person 24 said he turned to another SAS soldier, Person 14, who was standing next to him. “I recall saying: ‘Did we just witness an execution?’”
Person 24 became emotional as he made clear his high personal regard for his former friend.
“I still don’t agree with the fact BRS is here, under extreme duress, for killing bad dudes we went over there to kill,” he said.
“I do not want to be here. I find it extremely difficult to stomach having to give evidence against that man (Roberts-Smith) in the corner.”
Loaded: 59.03%
Correction Services van carrying Ben Roberts Smith headed towards Silverwater MRRC
Correction Services van...
more
Another soldier, Person 41, gave a slightly different version of events, saying Roberts-Smith flipped the Afghan onto his stomach before shooting him.
Yet another soldier, Person 14, told the court he saw an unidentified Australian soldier march a “black object” outside the compound before throwing it to the ground and opening fire with a heavy-calibre Minimi machine gun.
Person 14 told the court he later saw Roberts-Smith carrying the machine gun.
But notes made by Nine journalist Chris Masters after a 2018 meeting with Person 14, suggested it was not Mr Roberts-Smith but the patrol’s “rookie” who shot the man.
Person 14 told the court Masters’ notes were wrong – insisting that Roberts-Smith was the one carrying the machine gun at Whiskey 108.
The newspapers also claimed Roberts-Smith was present when his patrol commander ordered a junior Australian soldier, Person 4, to execute an Afghan prisoner so the rookie soldier could be “blooded” – initiated by getting them a “kill”.
Nine alleged Roberts-Smith instructed Person 4 to borrow a rifle sound suppressor from another soldier and then watched on as another senior soldier ordered Person 4 to shoot the elderly Afghan in the head.
Person 4 refused to answer questions about his alleged execution of the elderly man in Whiskey 108 on the grounds of self-incrimination.
The prosthetic leg was souvenired as a trophy by another SAS soldier and later, as a drinking vessel at the base’s unofficial bar known as The Fat Ladies Arms.
‘Kicked off a cliff’
Few in the defamation case felt the pain of a friendship torn apart more acutely than the two soldiers known in court as Person 4 and Person 11.They were the only witnesses to what occurred after Roberts-Smith allegedly kicked handcuffed shepherd Ali Jan off a cliff at Darwan in 2012.
This incident is the basis for the third criminal charge against Roberts-Smith: aiding, abetting, counselling or procuring another person to intentionally cause the death of a person, on or about September 11, 2012, at Darwan, Oruzgan province, Afghanistan.
The alleged killing was one of the centrepiece allegations in the Nine newspaper stories.
Roberts-Smith and his squad were hunting for turncoat Afghan army sergeant Hekmatullah who had recently killed three Australian soldiers as they played cards in the Australian base.
Late in the mission – just before the soldiers were due to be extracted – Ali Jan was detained and interrogated by Roberts-Smith, the newspapers reported.
Another Afghan detained that day testified that when “the big soldier” said something to Ali Jan, the farmer made the mistake of smiling.
Ben Roberts-Smith Case File
1996
Roberts-Smith, the son of West Australian Supreme Court judge Len Roberts, a former major general, joins the army at age 18
Person 4 gave evidence at the trial that Roberts-Smith took a few steps forward and kicked the man in the chest, sending him sailing over the edge of the cliff.
That soldier, who at the time was Roberts-Smith’s second in command, gave graphic evidence of watching the farmer tumble down the rocky incline and into the dry creek below, shattering his teeth on a rock on the way down.
The soldier said he and Person 11 then dragged the man across the dry creek bed.
As he walked away, Person 4 testified, he heard gunshots ring out. When he turned, he saw Person 11 with his weapon raised and Roberts-Smith watching on.
Roberts-Smith said the cliff incident simply did not happen. Instead, he and Person 11 each recounted how they had engaged and killed a Taliban “spotter” carrying a radio after they had crossed the dry creek bed, as the team was making its way to an extraction point, to be picked up by helicopters.
Person 11 said he saw a man in the cornfields about 20m away “moving in a very suspicious manner”. He fired a burst of three or four rounds at the man with his M4 assault rifle, and realised Roberts-Smith, behind him, was also shooting at the man.
Person 4 was probably Nine’s most important eyewitness in the case and gave compelling testimony on behalf of the newspapers.
But his credibility was tested.
Manipulated
Person 4 struggled with his mental health for years after his tours in Afghanistan and was discharged from the Australian Defence Force.It was his stories of atrocities that first began to filter through the regiment and ultimately to Nine’s journalists. The soldier had fought courageously alongside Roberts-Smith at the ferocious battle of Tizak, for which Roberts-Smith was awarded his Victoria Cross.
While Person 4 was awarded the Medal of Gallantry for his actions at Tizak, he admitted it rankled that Roberts-Smith received the VC.
On the witness stand, he admitted he had been manipulated by other soldiers who had eventually gone to the media with their claims about Roberts-Smith.
But Person 4 remained unapologetic about his evidence against his former friend, Person 11.
Person 11 confirmed that, after suffering a near mental breakdown, he had called Person 4.
“It was brief, but I laid out I was hurt deeply, disappointed, and that I was aware of what was going on and from this time forward our personal relationship was over,” he said.
By the time of the defamation trial, the pair hadn’t spoken in five years.
Another ‘blooding’
The fourth and fifth criminal charges relate to an SAS operation in October 2012, in Syahchow in Oruzgan province, Afghanistan.In this case the Nine newspapers alleged that Roberts-Smith directed Person 66, a rookie soldier, to kill an Afghan prisoner in 2012 as another exercise in “blooding”.
Person 66 allegedly shot an Afghan man on Roberts-Smith’s orders and placed a pistol and ammunition and pistol on the body before photographing it, to claim he was a Taliban combatant.
Liberal MP Andrew Hastie – who was then an SAS officer – gave evidence at the trial that Roberts-Smith had later walked past and commented, “Just a couple more dead c...s.”
Justice Besanko ruled that this allegation was unproven because Person 66 refused to give evidence on the grounds of self-incrimination.
Loaded: 5.01%
00:00 / 00:00
AFP arrest Ben Roberts-Smith at Sydney airport
Australian Federal Police arrest Ben Roberts-Smith at Sydney airport on Tuesday morning.
more
The Nine newspapers raised other allegations over which Roberts-Smith has not been charged.
During the Chinartu mission in October 2012, Roberts-Smith allegedly ordered another soldier “to shoot an Afghan male who was under detention” following the discovery of a weapons cache; with instructions being given to an Afghan soldier who then shot the man “in circumstances amounting to murder”, rendering Roberts-Smith “complicit in and responsible for murder”.
Besanko found the allegation proved, but there was only one alleged witness to the incident.
The legal team
Roberts-Smith will try to re-establish at least part of his high-profile team from the defamation trial, including silks Arthur Moses SC and Bruce McClintock SC, and solicitor Monica Allen, all of whom possess an encyclopaedic knowledge of the case.Roberts-Smith’s appeal to the Full Court of Federal Court last year pointed to the areas his legal team believed were the strongest in his defence.
In the case of the Whiskey 108 allegations, this was that official records from the time that referred to two insurgents having been killed as they fled the compound and that no one had ever challenged that narrative.
As for the other central allegation – that Roberts-Smith had kicked Ali Jan off a cliff in Darwan in 2012, before ordering another soldier to shoot him – Roberts-Smith attacked the evidence of Afghan witnesses from the village and again pointed to accounts of a legitimate engagement in “the official contemporaneous records”.
The Full Court rejected those arguments, but did so on the basis that only proof on the balance of probabilities was required.
Proof beyond reasonable doubt is the standard prosecutors will have to meet when Roberts-Smith fronts up for the battle of his life.
Read related topics:
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