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The Guardian - AU
The Guardian - AU
Ben Doherty

Ben Roberts-Smith defamation trial: witness expected to deny wrongdoing in killing of Afghan villager

Ben Roberts-Smith
The Ben Roberts-Smith defamation trial before Justice Anthony Besanko is expected to run several more weeks. Photograph: Dan Himbrechts/AAP

An Australian soldier alleged by three newspapers to have participated with Ben Roberts-Smith in the “joint criminal enterprise” of murdering an Afghan villager named Ali Jan is set to appear in the federal court this week as a witness for Roberts-Smith in his defamation action against the newspapers.

Anonymised before the court as Person 11, the SAS’s soldier evidence will be critical to Roberts-Smith’s case over the events in the village of Darwan on 11 September 2012, when Roberts-Smith is alleged, by the newspapers in their defence, to have kicked a handcuffed Ali Jan off a cliff before ordering him shot.

Person 11 is expected to deny all wrongdoing, and to back Roberts-Smith’s account that the man killed in Darwan – purported to be Ali Jan – was an enemy spotter legitimately killed, as the court has heard in previous evidence.

Roberts-Smith, a recipient of the Victoria Cross, 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 pleading a defence of truth. Roberts-Smith denies any wrongdoing.

The alleged murder of Ali Jan is the most notorious allegation of this sprawling complex defamation case, which has spent nearly a year before the federal court. The newspapers allege as part of their defence the murder was a “joint criminal enterprise” between Roberts-Smith and his subordinate, Person 11.

Australian SAS patrols raided the village of Darwan, in Afghanistan’s southern Uruzgan province on 11 September 2012, seeking a rogue Afghan soldier called Hekmatullah, who had killed three Australian soldiers three weeks earlier. Hekmatullah was not in Darwan.

At the end of the mission, the newspapers allege that a farmer called Ali Jan – visiting Darwan to buy flour – was taken into custody and handcuffed by the Australian 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.

Two Afghan witnesses and one Australian soldier have also given evidence they saw Roberts-Smith kick the man off the cliff. One soldier, Person 4, told the court: “I saw the individual smash his face on a rock, and I saw the teeth explode out of his face.”

According to the newspapers’ defence, Ali Jan did not die in the fall, but was then dragged into a cornfield and shot dead. The newspapers allege: “After Ali Jan had fallen the full height of the cliff down to the dry creek bed he was moved by two soldiers … to the other side of the creek bed where there was vegetation. After he had been moved … Ali Jan was shot multiple times in the presence of [Roberts-Smith] and Person 11.”

It is alleged Ali Jan was shot by either or both of Roberts-Smith and Person 11 – “a joint criminal enterprise” according to the newspapers’ defence before court. The newspapers also allege that both soldiers knew his death was unlawful, and tried to cover it up by placing a radio on his body to establish a post-facto justification for killing him as a “spotter”.

Roberts-Smith has consistently 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, who immediately opened fire upon the insurgent.

Roberts-Smith said he climbed the embankment to assist Person 11 in the skirmish 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 on behalf of the newspapers 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.

A former SAS regimental sergeant major – Person 100 – will begin giving evidence Monday morning. Several soldiers have told the court they reported concerns about possible war crimes to Person 100 in 2012 and 2013, but that nothing was done to investigate or hold soldiers accountable.

Person 11 is scheduled to follow Person 100 in the witness box. It is expected he will be in court for a number of days.

Arthur Moses SC, acting for Roberts-Smith, told the court Roberts-Smith himself would not get back in the witness box to give evidence in reply.

“The applicant [Roberts-Smith] won’t be giving evidence in reply … that’s the present position,” Moses said.

Last year, Roberts-Smith spent 11 days in the witness box giving evidence and being cross-examined.

The trial before Justice Anthony Besanko is expected to run several more weeks.

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