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The Guardian - AU
The Guardian - AU
Ben Doherty

Evidence of Afghan witnesses against Ben Roberts-Smith ‘hardly neutral’, lawyer tells court

Ben Roberts-Smith (right) enters the Federal Court with his barrister Arthur Moses SC.
Ben Roberts-Smith (right) enters the Federal Court with his barrister Arthur Moses SC. Moses disputed the evidence of three Afghan men who gave evidence against the Australian soldier in a long-running defamation action. Photograph: Dan Himbrechts/AAP

Lawyers for Ben Roberts-Smith have urged the court hearing a defamation trial to reject the testimony of three Afghan men who gave evidence against the Australian soldier in his defamation trial, saying they regarded foreign troops as “infidels” and gave “inconsistent and contradictory” evidence.

“To say they are credible is incredible,” Roberts-Smith’s barrister, Arthur Moses SC, told the federal court in closing submissions in the former soldier’s long-running defamation action.

Roberts-Smith, a recipient of the Victoria Cross, is suing for defamation the Age, the Sydney Morning Herald, and the Canberra Times over reports he alleges falsely portray him as a war criminal, bully and domestic abuser.

The newspapers are defending their reporting as true. Roberts-Smith denies all wrongdoing.

Three men from the southern Afghan village of Darwan gave evidence to the trial last year, testifying by video link from a Kabul law firm in the weeks before the Taliban retook control of Afghanistan.

Two of them told the court they saw a “big soldier” – whom the newspapers allege to be Roberts-Smith – kick an unarmed, handcuffed farmer called Ali Jan off a cliff. They said they found Ali Jan’s body – which had been shot through the jaw, skull and chest – in a nearby cornfield.

An Australian soldier, Person 4, told the court he saw Roberts-Smith kick a man off the cliff, and watched the man hit his face on the cliff as he fell. But this version of events was rejected by Roberts-Smith and the soldier alleged by the newspapers to have been involved in shooting the man, Person 11. They both told the court the man was a legitimate insurgent target who was carrying a radio, and that they lawfully killed him after discovering him hiding in the cornfield.

In closing submissions, Moses urged Justice Anthony Besanko to disregard the Afghan witnesses’ evidence, saying the men were prejudiced against Australian soldiers.

“These witnesses of course regarded Australian soldiers as infidels, it is plain that they believe if an infidel is killed, the person who kills them becomes a martyr [sic]: that is hardly a neutral position.”

He said the witnesses had been moved from their village in Darwan and housed in a safehouse in Kabul – with their rent, food and other expenses met – for months while they waited to give evidence. Moses argued that this indebted them to the newspapers, and made them willing to support their version of events.

Moses argued there was “no clear contemporaneous evidence as to the geography of the area including, importantly, the cliff … which it is said Ali Jan was kicked off”.

A photo of Darwan taken from an overwatch position showed “it’s more like a sandy knoll”, Moses said. “I mean, there are bigger knolls at Bondi beach here in Sydney or Henley beach in Adelaide,” he told Besanko. Besanko lives in South Australia, but has commuted to Sydney for this trial.

A picture of the village of Darwan, marked up by SAS soldier Ben Roberts-Smith.
A picture of the village of Darwan, marked up by Ben Roberts-Smith. Photograph: Federal Court of Australia

Moses said one Darwan witness, Mohammed Hanifa Fatih, had told the court that “the big soldier” – whom the newspapers allege to be Roberts-Smith, and identifiable because his uniform was wet from having swum alone across a nearby river – had spoken to him and other detained men in Pashtu.

“Mr Roberts-Smith has a lot of talents, as we know, but he doesn’t speak Pashtu,” Moses said.

In his evidence, Roberts-Smith told the court he had been trained in “very basic” Pashtu commands.

“If you were communicating with a PUC [person under control] during an assault it would only be using very basic words that we were taught … words such as ‘stop’, ‘get down’, even ‘put your hands up’.”

Last week in his closing submissions, Nicholas Owens SC, for the newspapers, said the evidence from the Afghan witnesses was credible, comprehensive and consistent with the evidence of the Australian soldier Person 4.

“[The Afghan witnesses] all spoke of being in that final compound set, seeing a tall soldier wet from the waist down, seeing someone kicked off a cliff all at the exact same time, the exact same date, in the exact same location, that Person 4 described,” Owens told the court.

“There is no attempt [from Roberts-Smith] to explain how it is that the evidence of Person 4, a soldier on this side of the world, could correspond so closely with the evidence of the three Afghan witnesses on the other side of the world.”

The newspapers in their defence allege that at the end of the mission to Darwan, Roberts-Smith murdered Ali Jan – who had been taken prisoner by Australian troops – in a “joint criminal enterprise” with his subordinate, Person 11.

It is alleged that during an interrogation, Roberts-Smith walked Ali Jan, bound in handcuffs, to the edge of a cliff before kicking him in the chest, causing him to fall more than 10 metres into a dry riverbed.

The defence alleges that Australian troops then walked down a zigzag path to the riverbed, from where Ali Jan, still alive but badly injured, was dragged to a nearby cornfield and shot either by Roberts-Smith or by Person 11 at Roberts-Smith’s direction.

Roberts-Smith has denied the allegation, telling the court in his evidence the man purported to be Ali Jan was a “spotter” discovered hiding in a cornfield and carrying a radio, who refused an order to stop. He was a legitimate target, he said, lawfully killed in accordance with the laws of war.

There was no cliff … there was no kick,” he told the court.

Person 11 told the court he was first to see the man hiding in the cornfield, and engaged him, backed by Roberts-Smith, as the Australian troops moved up an embankment towards their helicopter extraction point.

The trial will conclude this week. A judgment is not expected for several months.

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