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The Guardian - AU
The Guardian - AU
Ben Doherty

SAS soldier tells Ben Roberts-Smith defamation trial Afghan killed in Darwan was an insurgent spotter

Ben Roberts-Smith arrives at the federal court in Sydney for his defamation trial
Ben Roberts-Smith arrives at the federal court in Sydney for his defamation trial, which has heard from Person 11 about the Darwan mission in September 2012. Photograph: Dan Himbrechts/AAP

An SAS soldier has backed Ben Roberts-Smith’s version of an Afghan man’s death during an SAS mission in Darwan in 2012, telling the federal court that a man shot dead during the operation was an insurgent spotter who was a threat to Australian troops and legitimately killed.

Roberts-Smith and his former comrade, Person 11, are accused by three newspapers as part of their defence of Roberts-Smith’s defamation claim against them of a “joint criminal enterprise” in the murder of an Afghan farmer named Ali Jan, who the newspapers allege was handcuffed before being kicked off a cliff by Roberts-Smith and then shot dead by either or both of Roberts-Smith and Person 11.

Person 11, called as a witness by Roberts-Smith, gave extensive evidence to the court on the mission to Darwan on 11 September 2012. He said the man killed at the end of that mission was an insurgent spotter found hiding in a cornfield who the Australian soldiers discovered and “engaged” when they walked out of a dry creek bed into the cornfield.

“Shortly after coming out of the dry creek bed I identified an individual in amongst the corn,” Person 11 told the court. “My assessment was this individual was moving in a very suspicious manner.

“I saw this person carrying a radio, which led me to make the assessment that this was a spotter: this person would report on our dispositions and movements … I assessed this person posed a direct threat to the extraction of our forces so I engaged.”

Person 11’s version of events largely aligns with that of Roberts-Smith. But the two soldiers’ versions of events are not identical. Person 11 said the man shot in the cornfield was “15 metres away”.

Roberts-Smith, when he gave evidence last year, told the court, he climbed the embankment to confront the man, “facing him, he was two metres away”.

The alleged murder of Ali Jan is the most notorious allegation of a sprawling and 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.

Roberts-Smith 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.

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 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, or a “big soldier” matching his description, kick the man off the cliff. One Australian 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.”

Darwan in Uruzgan province of Afghanistan
Darwan, in Uruzgan province of Afghanistan, was raided on 11 September 2012 by SAS troops searching for Afghan soldier Hekmatullah, who had killed three Australian soldiers a fortnight earlier. Hekmatullah was not found in Darwan. Photograph: Federal court

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”.

Person 4 also told the court Roberts-Smith instructed him and Person 11 to drag the man across a dry creek bed towards the adjacent cropfields.

Person 4 said Roberts-Smith and Person 11 had a conversation before “a number of shots rang out”. He testified he saw Person 11 with his rifle raised in a firing position after he heard the shots.

Roberts-Smith has consistently denied this account, telling the court there were no “fighting aged males” found at the farthest compounds of the village.

Roberts-Smith said the Australian troops were moving towards a helicopter landing site to be extracted from the village when they encountered a spotter – a forward scout who reports soldiers’ movements back to insurgents – discovered hiding in a cornfield by 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.

Roberts-Smith told the court: “As I got there, he [Person 11] was engaging and I started to engage an individual that … was either going down or was down, and I fired three to five rounds …, from my recollection, into the individual as well and saw dust and strike on the ground around him, suggesting that either my bullets were hitting him or very close to him.

“Person 11 had identified that that person was a spotter and, on searching the individual, we found an ICOM radio.”

Person 11’s account in court Tuesday backed Roberts-Smith’s account, saying as he was firing at the insurgent “there was fire from another weapon coming from my rear right, that I later understood was coming from Mr Roberts-Smith”.

He told the court insurgent attacks were common at “insertion and extraction” from operations, and that moving towards extraction points was a period of “vulnerability” for troops.

Person 11 told the court he was not aware until 2017 that he was alleged to have been involved in an unlawful killing during the Darwan mission.

He remained in the witness box, giving evidence-in-chief before Justice Anthony Besanko.

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