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Ben Roberts-Smith defamation trial told SAS ignored 'breaches of the laws of war'

Ben Roberts-Smith denies all the claims made against him. (AAP: Dan Himbrechts )

Australia's SAS had a "culture of silence" in which people ignored "the most despicable and egregious breaches of the laws of war", the Ben Roberts-Smith defamation trial has heard. 

The lengthy case is now in its final phase and the judge is hearing closing submissions from publisher Nine Entertainment, which the war veteran is suing over a series of newspaper articles published in 2018. 

Mr Roberts-Smith claims those stories falsely portrayed him as a war criminal, a bully and a perpetrator of domestic violence, while Nine is relying on a truth defence.

Barrister Nicholas Owens SC, for Nine, today revisited testimony from several SAS witnesses about a key mission in 2009 at a Taliban compound known as Whiskey 108.

It is alleged two Afghan men were executed at Whiskey 108 after they emerged from a secret tunnel: a man with a prosthetic leg and an older man.

A former SAS soldier, named in the trial as Person 41, had previously told the court he saw parts of the alleged executions.

Nicholas Owens has been giving his closing submissions. (AAP Image: Bianca De Marchi)

"There was, we submit, Your Honour would find, clearly a culture of silence within the SAS," Mr Owens told the Federal Court.

Mr Owens said that did not "reflect well" on anyone, but also said Person 41 was a junior trooper who did not want to risk his position by speaking up.

"It is, with respect, a humanly understandable flaw in a person who has worked very hard to achieve something where there is a culture that says 'don't rock the boat'."

Mr Roberts-Smith has maintained there were no men in the tunnel and told the court he shot two armed insurgents outside the compound, in accordance with the rules of engagement.

Several SAS witnesses called by the war veteran have also insisted there were no men inside the tunnel, however, Nine has called SAS witnesses who variously described seeing the pair surrender.

Mr Owens submitted that if Justice Anthony Besanko believes the publisher's witnesses who say men did emerge from the tunnel, then "it follows nearly inevitably" that Nine's case would have been proved.

"Really, the two cases depart fundamentally from the point of did two men come out of the tunnel or not," he said.

"If Your Honour accepts the witnesses who say they saw men come out of the tunnel, it follows almost inevitably Your Honour would disbelieve Mr Roberts-Smith's entire case about Whiskey 108."

The barrister argued Person 41 was "an actual eyewitness" to the alleged execution of the man with the prosthetic leg", and "as good as an eyewitness" to the alleged execution of the older man.

Mr Owens has spent much of the second day of closing submissions on key elements of the Whiskey 108 evidence, singling out what he argues are corroborating factors between Nine's witnesses.

Closing submissions focused on a Taliban compound known as Whiskey 108. (ABC News)

Mr Owens said a large number of what he called "independent" witnesses— people who hadn't spoken to journalists and didn't volunteer to give evidence — gave consistent accounts of men coming out of the tunnel. 

He said none were suggested to be dishonest and none had a motive to lie, before claiming the account propounded by Mr Roberts-Smith was "improbable" and inconsistent with the witnesses called to support it.

"The other side of the option for Your Honour, we say, is a group of closely-associated witnesses bound by ties of strong friendship, business, and in some cases, criminal interest, each of whom has a powerful motive to lie and each of whom, we say, came and gave dishonest evidence," he said.

One of the most prominent allegations in the newspapers' stories was that a farmer named Ali Jan was kicked over a cliff, while handcuffed, in the village of Darwan during a 2012 mission, and then executed. 

Mr Roberts-Smith previously told the court there was no cliff and no kick, and insisted a man shot dead during a raid of the village was a suspected Taliban "spotter", or lookout, who was killed in a cornfield.

Mr Owens today highlighted the evidence of ex-SAS witness Person 4, who testified that he saw Mr Roberts-Smith "catapult" a man backwards over a slope and that the man's teeth were knocked out when his face hit rocks.

Person 4 did not see the man's alleged execution but claimed he saw another ex-colleague, Person 11, in a "position to shoot" after hearing shots.

The court also heard from three Afghan villagers, via videolink from Kabul through an interpreter, who claimed to have been in Darwan that day and seen elements of the cliff allegation.

"How is it that three illiterate Afghan villagers on the other side of the world, with no connection whatsoever to Person 4, have given evidence which in all material respects corresponds with what Person 4 says happened," Mr Owens said during his submissions.

"There is no explanation for how it is that the evidence of those two completely unconnected groups of witnesses could possibly correspond to the extent that it does."

Each side has four days, overall, for closing submissions.

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