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The Guardian - AU
The Guardian - AU
Ben Doherty

SAS soldier tells Ben Roberts-Smith defamation trial he felt hurt by best man who made murder allegation against him

Ben Roberts-Smith at the federal court in Sydney
Ben Roberts-Smith at the federal court in Sydney where his defamation trial has heard evidence from retired SAS soldier Person 11. Photograph: Dan Himbrechts/AAP

An SAS soldier who denies allegations that he murdered a handcuffed prisoner with Ben Roberts-Smith in Afghanistan has told a court he felt “incredibly hurt” when another soldier – his close friend and the best man at his wedding – alleged he did participate in killing the unarmed man.

Person 11, called by Roberts-Smith as a witness in his defamation trial against three newspapers, has given evidence about a critical allegation against Roberts-Smith: over the death of a man named as Ali Jan, in the village of Darwan in September 2012.

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.

The newspapers allege Roberts-Smith kicked Ali Jan, bound in handcuffs, off a cliff into a dry creek bed, before the injured man was dragged into a cornfield and shot dead, allegedly by one or both of Person 11 and Roberts-Smith.

Roberts-Smith and Person 11 have both denied the allegation, telling the court consistently they killed the man – an insurgent spotter – after they discovered him hiding in a cornfield and carrying a radio.

However, Person 4, serving alongside both men that day, has given evidence for the newspapers he saw Roberts-Smith kick the handcuffed man off the cliff and was ordered by Roberts-Smith to drag the injured man, with Person 11, into the cornfield before he was shot.

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.

Person 11 told the court Person 4 had been the best man at his wedding, a close friend and mentor, but that he had severed their relationship over the allegations of what had happened in Darwan.

“In 2018 I was made aware again of allegations that had been put to me, I was aware in 2018 that Person 4 had said certain things which had given rise to these allegations, and I felt incredibly hurt that someone who was so close for a number of years, who had been a mentor and good friend, not just professionally but also personally, would say such things that would cause such grief and heartache.”

He told the court he phoned Person 4 to tell him that, while they were then still serving alongside each other in the SAS, “on a personal level, our relationship was over”.

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.

Under extensive cross-examination from Nicholas Owens SC, acting for the newspapers, Person 11 defended his account of the man’s killing, saying he and his patrol were moving from the dry creek bed up into the fields – towards a helicopter extraction point – when he observed the man carrying a radio and moving in a way that was suspicious “trying to maintain concealment”.

He told the court he saw the man 15 metres away through “thickly vegetated” crop that was between five and seven feet high. He opened fire, closely followed by Roberts-Smith who was to his “right rear”.

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, “he was two metres away”.

On Wednesday, Owens asked Person 11: “How is it that you could have seen an insurgent through 15 metres of thickly planted crop that was five to seven feet high?”

“Because I could,” Person 11 replied.

“You couldn’t could you?”

“That’s not true.”

“Because there was no one there?”

“That’s not true.”

Owens put it to Person 11 that “there was no spotter in that cornfield” and that he and Roberts-Smith had “concocted a false story” to cover up the fact they had unlawfully killed a ‘PUC’, a ‘person under a control’.

“That’s not correct, Mr Owens,” Person 11 said. “I have come here in good faith to tell the truth.”

Owens put it to Person 11 that the radio photographed on the body of the slain man was placed next to his corpse after he was killed, as a post-facto justification for his killing. Person 11 denied this, saying he saw the man carrying the radio and assessed him to be a spotter – a forward scout who relays troop movements to other insurgents.

Owens showed Person 11 pictures of the slain man’s body, whose arms and hands were covered in blood, but which also showed a stripe of clean skin on his wrist where there was no blood.

“I want to put to you that the very straight line on his wrist where there is no blood is consistent with the man wearing flexicuffs when he was bleeding.”

“I disagree with that Mr Owens,” Person 11 said.

Owens said: “I want to put to you clearly: when you shot this man his hands were handcuffed behind his back, correct?”

“That is incorrect,” Person 11 replied.

Person 4, Person 11’s former friend, has been a key witness in the year-long defamation trial brought by Roberts-Smith.

He has given critical evidence about the mission in Darwan.

However, Person 4 has also been accused of participating in the execution of an unarmed prisoner, also involving Roberts-Smith, during an earlier SAS operation in the village of Kakarak in 2009.

The newspapers allege Person 4 was ordered to execute an elderly Afghan man discovered hiding in a tunnel in a compound known as Whiskey 108 and who surrendered to Australian troops. Person 4 allegedly obeyed the order. The court has heard Person 4’s patrol commander gave the order to kill the unarmed man.

While Person 4 gave evidence about the Darwan mission, he objected to answering questions about Kakarak “on the grounds of self-incrimination”.

Person 11 remains in the witness box before Justice Anthony Besanko.

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