The former Fairfax newspapers claim they have found four new eyewitnesses to the alleged murder of an Afghan villager by Australian special forces, which they hope will bolster their defence against a defamation claim brought by the decorated soldier Ben Roberts-Smith.
Lawyers for the former Fairfax newspapers are also attempting to introduce evidence alleging Roberts-Smith’s involvement in two further alleged murders, including one in which he allegedly “blooded” a soldier known as “person 66” by instructing him to shoot an unarmed Afghan detainee.
In 2018, the Sydney Morning Herald, the Age – now owned by Nine – and the Canberra Times – now owned by ACM – published articles alleging that Roberts-Smith kicked a bound Afghan villager named Ali Jan off the edge of a small cliff into a dry creek bed.
Ali Jan was then allegedly shot.
The incident is alleged to have taken place during an SAS-led mission to the village of Darwan in September 2012, but has been repeatedly and vehemently denied by Roberts-Smith, a veteran awarded the highest military honour, the Victoria Cross.
Roberts-Smith has always denied the allegations and is suing the newspapers for defamation in the federal court, saying the articles wrongly portrayed him as a war criminal.
The former Fairfax papers are now attempting to amend their defence, roughly one-and-a-half years after proceedings began.
On Tuesday, the barrister Sandy Dawson, acting for the newspapers, said they had found four eyewitnesses to the alleged Ali Jan incident, known only as person 62, person 63, person 64 and person 65.
“Each of them, as your honour will have seen, are eyewitnesses to aspects of the Ali Jan incident, including, for person 62, witnessing the kick that we say that Ali Jan suffered at the hands of, or perhaps I should say at the feet of, the applicant, which sent him over the cliff and ultimately led to his death,” Dawson told the court.
The newspapers had previously alleged Roberts-Smith directed a soldier under his command, through an interpreter, to shoot Ali Jan.
Dawson said the amended defence alleged Roberts-Smith and another soldier, known as person 11, conferred by themselves at the bottom of the cliff where Ali Jan lay.
One of them, or both of them, allegedly shot the villager, the court heard.
Four soldiers, including Roberts-Smith and person 11, are then alleged to have agreed to cover up the killing, Dawson said.
The court heard that involved cutting the bindings from his hands and planting a radio next to his body to suggest he was a Taliban spotter, before dragging him to a nearby corn field.
“It is true that we cannot say which of the applicant or person 11 fatally shot Ali Jan,” Dawson said.
“It is true that we cannot say what the terms precisely were between the applicant and personal 11 when they were conferring at the bottom of the cliff, near Ali Jan’s body. But on the law, we don’t need to.”
The newspapers are also attempting to introduce evidence about two new alleged murders said to have involved Roberts-Smith, which they are describing as the “Sola mission” and the “blooding of person 66”.
The Sola mission, the court heard, referred to an operation on or about 31 August 2012, when Roberts-Smith is alleged to have directed a soldier under his command to shoot and kill a detained Afghan man, before planting a “throwdown” on him – a radio or weapon, for example – to make it look like a legitimate kill.
The “blooding of person 66” incident allegedly refers to a mission in October 2012 in an area called Syahchow.
One of the soldiers under Roberts-Smith’s command, person 66, had not yet made his first kill, the court heard.
It is alleged that Roberts-Smith directed person 66 to accompany him into a compound, where detainees were being held.
Two detainees were removed and taken to a nearby field, and it is alleged that Roberts-Smith directed person 66 to shoot one of the men.
“After that had occurred the applicant said that he had ‘blooded’ person 66, using his nickname,” Dawson said. “Blooding … is the process by which a young soldier is directed to kill for the first time, and is therefore blooded.”
Roberts-Smith, represented by Bruce McClintock SC, is arguing that the amendments to the defence should not be allowed.
McClintock said the attempt to change the defence put a “cruel strain” on his client.
“Yes he’s won a Victoria Cross, yes he’s a soldier, yes he saw a considerable amount of action, yes there can be no question about his courage,” McClintock said. “But he’s still a human being, your honour, and to confront allegations like this, put forward by a large and powerful media organisation, in circumstances where, it turns out, what they actually said in the articles is insupportable, and now that they want to change position.”
The changes altered the newspapers’ defence significantly and departed from the version they originally published, McClintock said.
The changes would delay the trial, he said, and prejudice his client’s ability to run the case.
He said the newspapers were changing their story completely because they realised their original version could not be true. Key dates and aspects of the initial version had now changed, McClintock said.
“I ask your honour to imagine the strain on anyone, including a man with the supreme courage of my client, of having to put up with a case, which, every time he shows it’s false, they change it,” McClintock said.
“Person 12 wasn’t there? So we come up with another version. Couldn’t have happened on 21 October? [We’ll say] 5 November. We’re a bit worried about Darwan now because of the unreliability of our Afghan witnesses, so we’ll allege two other murders. No explanation given.”
That strain, McClintock said, had been compounded by the allegations of two new murders made in the amended defence.
He said the newspapers had not explained the new murder allegations in detail or said where the information had come from. The new allegations had only just been introduced, despite the newspapers having some information about them for years.
Justice Anthony Besanko has reserved his decision on the proposal to amend the defence.
