Ben Roberts-Smith’s 11 days of forensic, at times extraordinary, evidence before the federal court have been revelatory about Australia’s war in Afghanistan, the chaos of his private life amid allegations of war crimes, and the usually arcane machinations of the SAS.
Roberts-Smith, one of the most decorated soldiers in Australian military history, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports he alleges are defamatory and portray him as committing war crimes, including murder. The newspapers are defending their reporting as true.
Three weeks into a trial likely to run three months, these are some of the most dramatic allegations so far.
Whiskey 108 – the man with the prosthetic leg
In a village called Kakarak on Easter Sunday 2009, Australian SAS patrols raided a compound given the codename Whiskey 108. There, Roberts-Smith shot and killed a man with a prosthetic leg.
Roberts-Smith has consistently told the court he shot the man after he saw him running, carrying a weapon, outside the compound.
He said after he shot the man – who was armed, a legitimate target, and could be killed under the laws of war – he dragged his body back closer to the compound wall to “clear” the body – checking it for explosives or weapons – in a safer location before running back out to retrieve the man’s rifle.
The newspapers have alleged that version of events is entirely implausible, saying that the man with the prosthetic leg was one of two prisoners who surrendered after being discovered inside a tunnel inside Whiskey 108.
One prisoner, an old man, was executed by another SAS soldier – Person 4 – on the orders of Person 5, the patrol commander. Roberts-Smith was party to this execution, borrowing a suppressor from another soldier for the act.
It is alleged Roberts-Smith then picked up the remaining prisoner – the man with the prosthetic leg – and “forcefully manhandled” him outside the compound where he threw him to the ground and shot him 10 to 15 times with a machine gun.
Roberts-Smith denies this. At least four soldiers present at this raid – including persons 4 and 5 – will give evidence in this trial.
Ali Jan – death in Darwan
A second key murder allegation, from the village of Darwan, which was raided by Australian SAS patrols in October 2012.
The newspapers allege that a farmer called Ali Jan – visiting Darwan to buy flour – was captured and handcuffed by the soldiers.
After Ali Jan laughed twice at Roberts-Smith while being interrogated, Roberts-Smith is alleged to have marched him outside to the edge of a small cliff where he forced Ali Jan to kneel and then “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,” the newspapers’ defence states.
Ali Jan was then shot on Roberts-Smith’s orders, the newspapers allege.
Roberts-Smith has vociferously denied this account, telling the court the man purported to be Ali Jan was a “spotter” – a forward scout who reports soldiers’ movements back to insurgents – who was discovered hiding in a cornfield by another solider, Person 11, as he climbed an embankment from the creek bed, immediately opening fire upon the insurgent.
Roberts-Smith said he climbed the embankment to assist Person 11 in the firefight and also fired at the man, who was about two metres away.
The man was killed and, Roberts-Smith said, found to be in possession of a radio. Roberts-Smith said the man killed was clearly an insurgent and a legitimate military target who could be killed within the laws of war.
The court has heard evidence that a photograph of Ali Jan, taken after his death, showed his arm and wrist covered in blood, except for a thin “stripe” of clear skin where there was no blood. This was alleged to be evidence he was in handcuffs when shot. Roberts-Smith denies this.
Threatening letters
Roberts-Smith was accused of writing an anonymous threat sent to a serving SAS soldier at the regiment’s Perth barracks.
“You and others have worked together to spread lies and rumours to the media and the inspector general’s inquiry [into alleged war crimes],” the printed letter said. “You have one chance to save yourself. You must approach the inquiry and admit that you have colluded with others to spread lies.
“We are very aware of your many murderous actions over many tours in Afghanistan, including specific dates … just like when you took part in the execution of two persons-under-control at Tizak. You know what you have done and so do we.
“Don’t forget this because it will not go away. You will go down, better to take a reprimand than murder charges.”
The newspapers allege Roberts-Smith printed off the letters at a Channel Seven office, and used gloves while stamping the envelopes. He then allegedly gave the envelopes to John McLeod, a former police officer turned private investigator, and asked McLeod to write the addresses on the envelopes. Roberts-Smith denies he had any involvement in the letter. McLeod is scheduled to give evidence in this trial.
Roberts-Smith did write a dossier which he handed to McLeod detailing allegations another SAS soldier had taken unregistered, illegal weapons into Afghanistan, allegedly so that they might be used undetected. McLeod took the dossier to a politician, a journalist and the commissioner of the Australian federal police.
The private investigator
Roberts-Smith also hired McLeod to spy on a woman with whom he was having an affair – known in court documents as Person 17 – when she attended a Brisbane abortion clinic to terminate a pregnancy she had agreed with Roberts-Smith to end. Roberts-Smith had been having an affair with Person 17 for about five months when she fell pregnant. McLeod surveilled Person 17 and shot a secret video of her at the abortion clinic.
Person 17
Roberts-Smith had a six-month affair with Person 17 over 2017 and 2018. He is accused of punching her in the face after a dinner at Parliament House in March 2018. He denies ever striking her, or any woman. The court heard she fell down the stairs leaving Parliament House and allegations that, at the Realm Hotel, when she said her head hurt, Roberts-Smith said “It’s going to hurt more” or “I’ll show you what hurt is”, and punched her in the left temple with his right hand.
The allegation is a “complete fabrication”, Roberts-Smith said.
“I’ve never hit a woman. I never would hit a woman. And I certainly never hit Person 17.”
It was alleged Roberts-Smith took photos of her naked body while she was unconscious in bed. He denies this.
Roberts-Smith told the court the allegation he committed an act of domestic violence was devastating. He said he found domestic violence “deplorable” and a “disgusting act of cowardice”.
Burning the laptop
Roberts-Smith told the court that he poured petrol on his personal laptop computer and set it on fire in 2018. He said he was not seeking to conceal evidence, but that he wanted “to destroy the hard drive”. He said this was unexceptional, and he had previously burned computers to protect private information such as passwords.
He also told the court he “zero-wiped” another laptop in 2021 five days after being instructed not to by lawyers. He said he had put all the information from the computer onto a USB and handed it to his lawyers. He said he wiped the computer because he wanted to trade it in.
The burner phones
Roberts-Smith said he asked a family friend – who will also give evidence in this trial, called by the newspapers – to buy four Sim cards to use in burner phones. He got the new numbers after allegations of war crimes were published about him, because he said he feared the media was trying to listen to his phone calls. He denies allegations he was trying to collaborate with witnesses called before the inspector general of the Australian defence force.
The USBs
Six USBs containing thousands of photos from Afghanistan – including hundreds of photos of soldiers drinking at the unauthorised Fat Ladies’ Arms bar at the Australian base in Afghanistan – were held by Roberts-Smith at his home in Queensland. The newspapers allege he buried them under a rock in his backyard to conceal evidence. He says he never did and the USBs were in his desk drawer.
Roberts-Smith has conceded he kept “secret and classified material” at his home unlawfully on the USBs, including operational reports and videos from missions in Afghanistan.
“I believe it’s the wrong thing to do. I accept that. To state that it endangers our national security is a stretch too far.”
The ministers in the witness box
The serving assistant defence minister, Andrew Hastie, will appear in the witness box in this trial, called by the newspapers to give evidence about an allegation of the “blooding” of a subordinate soldier on his first tour. Hastie, a former SAS captain, served alongside Roberts-Smith.
It was alleged in court that some new SAS members on their first tour were ordered by patrol commanders to kill a prisoner in order to “blood” them into the regiment. Roberts-Smith denies being part of any blooding, and says he never heard the term until after he left the army.
The former defence minister Brendan Nelson will give reputation evidence for Roberts-Smith.
The ‘nightmare’ of allegations
“I spent my life fighting for my country and I did everything I possibly could to ensure I did it with honour,” Roberts-Smith told the court on his first day in the witness box.
He said he was devastated to be accused of war crimes.
“When I listen to that I really cannot comprehend how people, on the basis of rumour and innuendo, can maintain that in a public forum. And it breaks my heart, actually.”
Roberts-Smith said he was similarly distraught by the allegation he had hit a woman.
“That particular allegation, coupled with being called a war criminal, ruined my life. I found it hard to leave the house. I have such disdain for those types of people, and to be labelled that, and to have to wear that, was just very difficult.”
His lawyer, Bruce McClintock SC, told the court Roberts-Smith was white-anted by other soldiers jealous of his awards, poisoned by their own “corrosive jealousy”.
Roberts-Smith’s accusers are “fabulists” and “failures”, McClintock said, and the allegations against him could only have been committed by an “ostentatious psychopath”.
“He is not that.”
The soldier himself said the military’s highest honour, for all its good, “has also brought me a lot of misfortune and pain”.
“It put a target on my back.”
