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The Guardian - AU
The Guardian - AU
Ben Doherty

Former SAS soldier tells court he saw Ben Roberts-Smith kick handcuffed man off a cliff before he was shot dead

A former SAS colleague testified in federal court that he saw Ben Roberts-Smith kick an unarmed, handcuffed man off a cliff in Afghanistan in 2012
A former SAS colleague testified in federal court that he saw Ben Roberts-Smith kick an unarmed, handcuffed man off a cliff in Afghanistan in 2012. Photograph: Dean Lewins/AAP

Ben Roberts-Smith’s SAS comrade saw him kick an unarmed, handcuffed Afghan man off a cliff before ordering subordinate soldiers to drag the severely injured man under a tree where he was shot dead by another soldier, the federal court has heard.

“I saw the individual’s face strike a large rock and sustain a serious injury. It knocked out a number of his teeth including his front teeth,” the soldier told the court. “I was in shock.”

In emotional and dramatic evidence, the former SAS soldier, who was on the patrol led by Roberts-Smith, testified to the alleged killing of the unarmed man in the village of Darwan in 2012.

Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times over reports he alleges are defamatory and portray him as committing war crimes, including murder, as well as acts of bullying and domestic violence.

The newspapers are pleading a defence of truth. Roberts-Smith denies any wrongdoing, including the alleged unlawful killing in Darwan.

The former soldier was anonymised before court as Person 4. He was a witness called by the newspapers under force of subpoena.

The court heard on 11 September 2012, Roberts-Smith’s patrol was involved in an operation in Darwan, in Uruzgan province, seeking a rogue Afghan soldier called Hekmatullah, who had killed three Australian troops. Hekmatullah was not found in the village.

Person 4 told the court towards the end of the mission, the Australian troops encountered a man in a compound. He said the man was not armed and had a donkey loaded with firewood.

Witnesses in Afghanistan, who gave evidence in the newspapers’ defence last year, named the man as Ali Jan. They told the court he was a farmer visiting Darwan from a neighbouring village.

Person 4 said the man was taken into custody, his hands cuffed behind his back, and placed inside the compound facing a wall. He said Roberts-Smith took charge of questioning the detained man.

Shortly after, according to Person 4 the Australian troops received communications to move to their extraction point, to be removed from the village by helicopter. Person 4, as he moved to the corner of another compound, looked back towards where the man had been detained.

He told the court he saw the detained man, still handcuffed, now outside the compound standing above a “long, steep slope”, being held there by another soldier, known before court as Person 11.

Darwan in Uruzgan province of Afghanistan. The village was raided on 11 September 2012 by Australian SAS troops, searching for rogue Afghan soldier Hekmatullah, who had killed three Australian soldiers a fortnight earlier
Darwan in Uruzgan province of Afghanistan. The village was raided on 11 September 2012 by Australian SAS troops, searching for rogue Afghan soldier Hekmatullah, who had killed three Australian soldiers a fortnight earlier. Photograph: Federal court of Australia

“At the same time I noticed Ben Roberts-Smith. He had walked to a position maybe three or four metres away. As I was trying to understand [what was happening] he turned around and walked forward and kicked the individual in the chest.

“[Person 11] was still holding the individual – the individual was catapulted backwards and fell down the slope.”

Person 4 said he watched the man fall and hit a large rock.

He gave evidence that he followed Roberts-Smith and Person 11 down a track system that led to a dry creek bed, where the man had landed.

“I was in shock … it was something I had never encountered before … seeing that individual go over the side.”

The man was still alive when the soldiers reached the creek bed, Person 4 told the court.

“The individual was quite dusty and had sustained a serious facial injury. As we were approaching that individual, he attempted to sit up and then fell back down again.”

Person 4 told the court Roberts-Smith ordered him and Person 11 to drag the man across the creek bed under a tree, an order Person 4 told the court he followed.

The detained Afghan man was standing up, when Person 4 said he began to walk away towards the helicopter landing zone. He said he was four or five metres away, and heard Roberts-Smith and Person 11 speaking, but could not discern what they were saying.

He heard “two or three rounds” fired from a suppressed M4 rifle and turned to see Person 11 with his weapon lifted to his shoulder “still in a position to shoot”. The detained Afghan had been shot.

Person 4 said Roberts-Smith then told Person 4 to give him the camera he was carrying, allegedly saying “we need to take some photos”.

Person 4 was shown photographs in court of a man’s body with an “ICOM” – a radio used by insurgents to communicate – next to it. Person 4 identified it as the man he had seen kicked off the cliff.

Person 4 testified the slain man was not carrying a radio “to my knowledge”. He told the court he believed the radio, because it was wet, had come from the body of another man, earlier killed in battle by Roberts-Smith, after Roberts-Smith had swum solo across a river to engage him.

Person 4 told the court that back at the Australians’ barracks Roberts-Smith had spoken to the patrol and said: “this is what the story is”.

Person 4 testified Roberts-Smith said: “the story is we engaged a spotter whilst moving to our HLZ [helicopter landing zone].”

Roberts-Smith has consistently denied he unlawfully killed anybody on operation at any time, and specifically during the mission in Darwan.

In his evidence he told the court that he and a comrade had encountered the man purported to be Ali Jan as they were climbing an embankment to be “extracted” from Darwan by helicopter.

The man had been carrying a radio, refused an order to stop and was lawfully “engaged”, Roberts-Smith said. He claims he was a legitimate target shot dead in a firefight, in accordance with the laws of war.

Roberts-Smith maintained he could not have killed the man as alleged because there was no cliff from which to kick him. “There was no cliff … there was no kick,” he told the court.

The testimony from Person 4 follows evidence about Darwan heard by the court from Afghan witnesses who testified in the trial last year.

Ali Jan’s nephew Mohammed Hanifa Fatih told the court last year he had seen a big soldier with a wet, sandy uniform kick Ali Jan in the chest, causing the handcuffed man to fall down the steep embankment into a dry creek bed.

He was rolling down, rolling down until he reached the river,” Hanifa told the court. Hanifa said he had lost sight of Ali Jan as he rolled down the embankment but had later heard gunshots being fired, and had seen Ali Jan’s body being dragged by two soldiers “to the berry trees” nearby.

Under cross-examination, Hanifa was accused of confecting evidence out of hatred towards the Australian troops.

“What I said is true,” Hanifa replied. “I saw these things.”

On Monday afternoon, the court heard extensive argument about whether Person 4 should be compelled to answer questions about other aspects of his military service in Afghanistan. Another witness in the trial has previously claimed they saw person 4 standing over a dead Afghan prisoner immediately after hearing shots fired during a different operation.

Person 4 on Monday refused to answer questions from lawyers for the newspapers about the events during a raid on a compound called Whiskey 108, in the village of Kakarak, Uruzgan, in 2009.

Earlier in this trial, another SAS soldier, Person 41, gave evidence that two Afghan men, one elderly, were discovered hiding from Australian troops in a secret tunnel in a courtyard inside the Whiskey 108 compound.

Person 41 said when the two men were found, Person 4 and Ben Roberts-Smith borrowed the suppressor from his weapon. Person 41 told the court he saw Roberts-Smith grab the elderly man “by the scruff of his shirt”, walk him until he was in front of Person 4, and force him to his knees.

“RS [Roberts-Smith] pointed to the Afghan and said to Person 4 ‘shoot him’,” Person 41 told the court.

Person 41 said he stepped into a room off the compound to avoid seeing what he believed was about to occur. He said he heard a muffled round fired from an M4 rifle, and waited another “15 or so seconds” before stepping back into the courtyard.

He said Roberts-Smith was no longer in the courtyard, but Person 4 was standing above the Afghan male, who was dead from a single bullet wound to the head.

Roberts-Smith has previously told the court the allegation he had ordered the man shot was “completely false”.

Under cross-examination, Person 41 was questioned why he hadn’t reported what he’d seen to his commanders.

“I just wanted to keep quiet about the whole thing,” he told the court. “I was a new trooper, on my very first trip with the SAS, I just wanted to toe the line. It’s the unwritten rule – you go along with whatever happens.”

On Monday afternoon, lawyers representing Person 4, representing the newspapers, and representing Roberts-Smith, debated whether Person 4 should be compelled to testify on the events of Whiskey 108, even under a certificate protecting him from self-incrimination.

Person 4’s lawyer, Ben Kremer, told the court that even with the protection of the judge-issued certificate, he could be at risk of prosecution internationally if he wasn’t prosecuted in Australia.

“There is no protection from the certificate… this court should exercise its discretion not to compel the witness to answer questions.”

Nicholas Owens SC, for the newspapers, told the court he would not press Person 4 to answer questions about Whiskey 108. He conceded the risk of an International Criminal Court prosecution “could not be excluded”.

“There is some risk of prosecution in the ICC.”

Arthur Moses SC, acting for Roberts-Smith, said the newspapers and Person 4 had struck agreement that he would not be pressed to answer questions on Whiskey 108, describing the undisclosed arrangement as a “pantomime” before the court, one that impacted upon the reliability and credibility of Person 4’s other evidence.

Lawyers for the newspapers argued there was no agreement, nor any improper arrangement, merely that they had made a forensic decision not to press certain questions if the witness objected.

Person 4 remains in the witness box. He is expected to face cross-examination Tuesday.

The trial, before justice Anthony Besanko, continues.

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