The most dramatic murder alleged to have been committed by Australian soldier Ben Roberts-Smith – that he kicked an unarmed, handcuffed Afghan civilian off a cliff before ordering him shot – has been outright denied by his legal team, who say the allegation is “ludicrous” and the man’s killing was justified.
The Victoria Cross recipient’s high-profile defamation trial over war crimes allegations began in Sydney on Monday, with his barrister Bruce McClintock SC opening his case in combative fashion, saying those accusing Roberts-Smith were “fabulists” without credibility, or “failures as soldiers” motivated by jealousy.
The alleged murder of an Afghan farmer called Ali Jan, in the village of Darwan on 11 September 2012, has become a centrepiece of a suite of allegations of wrongdoing levelled against Roberts-Smith.
In the newspapers’ defence documents before court, it is alleged that Ali Jan had been handcuffed during a raid on Darwan. As helicopters were coming to “extract” the Australian soldiers, Roberts-Smith allegedly took Jan to the edge of a small cliff and forced him into a kneeling position.
Roberts 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”.
“[Roberts-Smith] directed a soldier under his command to kill Ali Jan, which he did.”
McClintock told the first day of the court hearing the execution-style killing never happened, and that the man killed was a spotter – an enemy scout who reports soldiers’ movements back to militants.
He said Roberts-Smith was walking behind another soldier through a dry creek bed at the end of the mission to Darwan to where the helicopters would extract them back to base.
The soldier in front – known in court documents as Person 11 – climbed a small embankment, between one and 2 metres high, and became immediately involved in a firefight.
“He [Roberts Smith] saw Person 11 engaging, that is open fire,” McClintock said. “[Roberts Smith] then clambered up the embankment himself, he fired two or three rounds at a spotter in a cornfield. He saw dust from his rounds biting the ground … he was 2-to-5 metres away from the spotter.”
McClintock said it is not known which soldier’s shot killed the spotter in the field, but the killing was within the soldiers’ rules of engagement. The man was found with a radio, he said.
“The allegation is actually ludicrous, that my client killed an unarmed man outside in full view. It did not happen.
“If someone called Ali Jan did die, then it was because he was a spotter, sitting in a cornfield killed legitimately by [Roberts-Smith] or Person 11.”
McClintock said there were no witnesses who could attest to the execution alleged.
“[Roberts Smith] has never killed anyone outside the rules of engagement ever,” McClintock said.
The trial will hear from soldiers who were in Darwan on that day, as well as from Afghan villagers there too, and from members of Ali Jan’s family.
Roberts-Smith, 42, is suing the newspapers for defamation over a series of reports published in 2018 which he alleges are defamatory because they portrayed him as someone who “broke the moral and legal rules of military engagement” and committed war crimes, including murder.
Roberts-Smith has consistently denied the allegations, saying they were “false”, “baseless” and “completely without any foundation in truth”.
The court heard on Monday the newspapers allege Roberts-Smith committed six murders, on five separate occasions, while deployed to Afghanistan as a member of the SAS regiment. He is also accused of bullying fellow soldiers, and committing domestic violence.
McClintock told the court the allegations could not be sustained – “there’s no evidence to support any of these allegations” – and said that one allegation of an unlawful killing, later withdrawn by the newspapers was an outrageous allegation to make without evidence and “justifies the largest award of aggravated damages ever in this country”.
“This is a case of courage, devotion to duty, self sacrifice and, perhaps most important of all, surpassing skill in soldiering on one hand. On the other hand, it’s a case about dishonest journalism, corrosive jealousy, cowardice and lies … led by bitter people, jealous of [Roberts-Smith’s] courage and success, aided by credulous journalists.”
McClintock emphasised to Justice Anthony Besanko: “War is violent”, and that soldiers are required, at times, to “kill the enemy”.
He said Roberts-Smith’s detractors have “forgotten the violence of war in their rush to tear him down”.
McClintock offered the court a quote often attributed to Winston Churchill: “We sleep soundly in our beds because rough men stand ready in the night to visit violence on those who would do us harm”.
The soldier himself attended the first day of the trial, walking into court – amid ferocious media attention – alone.
His mother, Sue, and father Len, a judge and major-general in the Australian army, hugged him in court when they arrived and took up seats behind him.
Roberts-Smith will be the first person to give evidence in the case. He is expected to take the stand later this week.
McClintock attacked some of Roberts-Smith’s former comrades as “failures” as soldiers. Some of those former soldiers will give evidence later in this trial.
“Being thought of as a failure as a soldier has a corrosive effect on a person.”
And McClintock said many of the soldiers were suffering, physically and psychologically, from their repeated tours of Afghanistan. He argued that the number of missions required of frontline SAS troops was “almost inhumane”.
He said some of those giving evidence in the trial might be “confused, mistaken, or have false memories because of the trauma over a number of years”.
McClintock also repeatedly attacked the credibility of a woman who filed a police complaint of domestic violence against Roberts-Smith.
