Ben Roberts-Smith has denied shooting dead an unarmed Afghan with a prosthetic leg after ordering a junior SAS member to skill a second prisoner in a ‘blooding’ custom.
Australia’s most decorated soldier was giving evidence in his defamation trial against Nine newspapers which accused him of war crimes in a series of stories published in 2018.
Mr Roberts-Smith has told the Federal Court he shot dead an Afghan man outside a Taliban compound known as Whiskey 108 at Kakarak in southern Afghanistan on Easter Sunday in April 2009.
Mr Roberts-Smith served six operational tours in Afghanistan with the elite Special Air Service and left the regular army in 2013 with the rank of corporal. He was accused by Nine newspapers of murdering six Afghan men which he has vehemently denied
Mr Roberts-Smith has denied two Afghan men were found in this tunnel and shot dead after surrendering. He told the Federal Court the men were killed in battle.
Mr Roberts-Smith has said his soul was crushed by allegations he punched a woman in the face and committed war crimes. He is pictured with his new girlfriend Sarah Matulin attending the Magic Millions races together on the Queensland Gold Coast in January this year
He later discovered that man had a prosthetic leg. In the same engagement, another SAS soldier had shot dead a second insurgent.
Barrister Nicholas Owens SC for Nine put it to Mr Roberts-Smith on Monday that both Afghan men were in fact found in a tunnel in the compound and taken prisoner after surrendering.
Mr Owens said a solder called Person 5 had told a soldier called Person 4 to shoot one of the prisoners, an old man wearing a white robe. ‘That’s completely false,’ Mr Roberts-Smith responded.
Mr Owens said Mr Roberts-Smith or Person 4 had asked to borrow a suppressor to silence one of their weapons from a soldier called Person 41.
He claimed Mr Roberts-Smith forced the old man to the ground and told Person 4, ‘Shoot him’. Mr Roberts-Smith denied all of it. ‘That is completely false.’
Mr Owens put it to Mr Roberts-Smith that he then carried the prisoner with the prosthetic leg out of the compound, threw him on the ground and shot him with an extended burst from his machine gun.
He put to Mr Roberts-Smith that when he realised Person 4 had seen the execution he asked him, ‘Are we cool?’ Mr Roberts-Smith replied: ‘No, that’s a lie.’
Mr Roberts-Smith has told the court that two insurgents, including the man with the prosthetic leg, were shot dead in legitimate engagements during the mission.
Mr Roberts-Smith shot dead a man with a prosthetic leg on a mission in 2009. The leg was souvenired by another soldier and taken back to the SAS base where it was used as a drinking vessel. Mr Roberts-Smith (pictured) has denied ever drinking from the leg
Ben Roberts-Smith’s Victoria Cross made him the most famous soldier in Australia but also allegedly led to jealousy among some of his colleagues. The Queen is pictured shaking hands with him during an audience at Buckingham Palace in November 2011
The man with the prosthetic leg had been armed with a bolt-action rifle and the other with a machine gun. He said no Afghans were found in a tunnel or taken prisoner and Person 5 had not discussed ‘blooding rookies’.
The trial has previously heard that a soldier known as Person 6 who was one of Mr Roberts-Smith’s ‘enemies’, souvenired the leg as a war trophy.
The leg was kept at the SAS base and used as a drinking vessel at the regiment’s unofficial bar, the Fat Lady’s Arms.
Mr Roberts-Smith has always denied having drunk from the hollow limb but said on Monday he had cheered with other soldiers when they had done so. It was an accepted part of the SAS culture and he had encouraged it.
Mr Roberts-Smith said he owned two glasses shaped like the prosthetic leg which had been given to members of his squadron and engraved with its number.
Mr Roberts-Smith’s testimony was delayed on Monday while he awaited the results of a Covid-19 test after he visited a virus hotspot last Thursday morning.
The 42-year-old had worked out at a city gym about seven hours before a person with Covid attended the site.
He was contacted by NSW Health on Sunday, told to get tested and then to self-isolate until the department contacted him about the results.
Mr Roberts-Smith learnt late on Monday morning the test proved negative but the delay to the hearing cost litigants and taxpayers tens of thousands of dollars.
Nine newspapers published a series of stories in 2018 accusing Mr Roberts-Smith of war crimes including involvement in the murders of six unarmed prisoners.
The Victoria Cross recipient has rejected every allegation put to him and said he only ever fought with honour, within the rules of engagement in Afghanistan.
Under cross-examination by Mr Owens on Thursday, Mr Roberts-Smith locked himself into definitions of what would constitute war crimes.
All the Nine murder allegations relate to claims the former SAS soldier killed, or ordered to be killed, insurgents already in custody.
WITNESSES FOR BEN ROBERTS-SMITH
1. Ben Roberts-Smith VC MG
2. Susan Wood
3. Shannon Sedgwick
4. Deborah Rolfe, AM
5. Anthony Tremlett
6. Dr Parbodh Gogna
7. Adam Veale
8. Sarah Kelly
9. Person 30
10. Dr Brendan Nelson
11. Michael Potter
12. Person 5
13. Person 9
14. Person 11
15. Person 22
16. Person 23
17. Person 27
18. Person 29
20. Person 33
21. Person 35
22. Person 36
23. Person 37
24. Person 38
25. Person 39
26. Person 49
27. Person 68
28. Terry Nichols
29. Jed Wheeler
30. Neil Mooney
NINE NEWSPAPERS’ WITNESS LIST
1. Person 1
2. Person 2
3. Person 4
4. Person 7
5. Person 10
6. Person 14
7. Person 16
8. Person 17
9. Person 18
10. Person 19
11. Person 20
12. Person 21
13. Person 22
14. Person 24
15. Person 31
16. Person 40
17. Person 41
18. Person 42
19. Person 43
20. Mohammed Hanifa
21. Man Gul
22. Shahzad Aka
24. Person 66
25. Person 69
26. Andrew Hastie
27. Emma Roberts
28. Danielle Scott
29. John McLeod
30. Tony Samuels (damages expert)
During his fifth tour of duty in Afghanistan, Mr Roberts-Smith (pictured) drew enemy fire away from pinned-down members of his patrol, stormed two enemy machine-gun posts and silenced them. He was awarded a Victoria Cross for his heroism. This picture was taken about an hour and a half after the battle
Mr Roberts-Smith was awarded the Victoria Cross for selfless actions in Afghanistan and is fighting for his reputation in the Federal Court, claiming his reputation was destroyed by media giant Nine Entertainment
Ben Roberts-Smith (second from left) pictured with his SAS regiment in Afghanistan where he was awarded the Victoria Cross for his heroism in a battle in Tizak, Kandahar Province
Barrister Bruce McClintock SC finished taking Mr Roberts-Smith through his evidence-in-chief on Wednesday. This is to be the defamation expert’s last trial
What we know about Ben Roberts-Smith and the ‘trial of the century’
Ben Roberts-Smith is suing Nine-owned newspapers The Sydney Morning Herald and The Age, plus The Canberra Times over allegations he committed battlefield crimes including murder.
His case, being heard in the Federal Court in Sydney, is expected to last ten weeks and is being bankrolled by his employer, the Seven Network’s billionaire owner Kerry Stokes.
Mr Roberts-Smith served six operational tours in Afghanistan with the elite Special Air Service and left the regular army in 2013 with the rank of corporal.
He was awarded the Victoria Cross for actions at Tizak in June 2010 and the Medal for Gallantry for an earlier battle near the Chora Pass in May 2006.
The newspapers will plead that Mr Roberts-Smith was complicit in and responsible for the murders of six people in Afghanistan, and that those actions constituted war crimes.
Nine alleges Mr Roberts-Smith killed insurgents who had been captured and none of the killings was the result of decisions made in the heat of battle.
Mr Roberts-Smith has also been accused of bullying other SAS troopers and punching a woman in the face at a Parliament House function in 2018, which he denies.
The 42-year-old says some of his onetime colleagues who are making allegations against him are jealous of his feats of soldiering and are telling lies.
He is the first witness to give evidence. His testimony will be followed by what is likely to be a week of cross-examination by lawyers for Nine.
Character witnesses will then testify on his behalf, followed by witnesses for the newspapers.
Mr Robert-Smith’s ex-wife Emma Roberts, the mother of his two children, is expected to give evidence for the publisher after ‘flipping’ sides.
Ms Roberts’ friend Danielle Scott, John McLeod – a former bodyguard of drug smuggler Schapelle Corby – alleged Afghani eye-witnesses and 21 serving and former SAS members will also be called by Nine.
Mr Roberts-Smith’s team will then call evidence from his other witnesses, understood to include former SAS comrades.
Mr Roberts-Smith said he had shot the man, who was armed with a bolt-action rifle, with a two-round machine gun burst when he was already outside the compound.
He said if the man had been shot 10 to 15 times his injuries would have been far more substantial than what was shown in photographs and he could not possibly have carried him when he was already wielding a machine gun.
‘I’m feeling good mate, looking forward to finally setting the record straight,’ Mr Roberts-Smith told Daily Mail Australia ahead of the hearing
Australian special forces soldiers are pictured boarded a Chinook helicopter at the airfield at their base in Tarin Kowt
Mr Roberts-Smith also denied another claim that a soldier known as Person 5 had ordered a trooper known as Person 4 to execute an unarmed insurgent by forcing him to kneel and shooting him in the back of the head.
Nine alleges that killing was an act of ‘blooding’ and Mr Roberts-Smith had done nothing to stop it. ‘I say it’s completely ridiculous,’ Mr Roberts-Smith said.
Mr Roberts-Smith told the court no such shooting took place but a second insurgent had been legitimately killed during the action.
He said the man he did kill at Kakarak was never in his custody and had not seemed to be hampered by his prosthetic leg.
After the battle his colleague Person 6, another soldier, said he would be taking the limb as a trophy. The leg was turned into a drinking vessel and kept at the SAS bar in Tarin Kowt called the Fat Lady’s Arms.
Mr Roberts-Smith’s ex-wife Emma has ‘flipped’ and is giving evidence for Nine Entertainment. The former couple is pictured together at a reception to celebrate military and civilian heroes in London in 2012
Many of Mr Roberts-Smith’s SAS colleagues were pictured drinking from the leg in the Fat Lady’s Arms but he was not one of them
Mr Roberts-Smith has also denied claims of trying to interfere with investigations into his conduct and of bullying former colleagues.
He said on Wednesday he had not buried USB sticks containing pictures of soldiers in Afghanistan in his Queensland backyard, as alleged by Nine.
And he has rejected a claim he punched a woman with whom he was having an affair in the face after a Parliament House function in March 2018. She is known as Person 17 in the hearing.
Mr Roberts-Smith alleges the newspapers and journalists Nick McKenzie, Chris Masters and David Wroe defamed him in what was then the Fairfax press in 2018.
Among his claims is that the publications wrongly made out that he ‘broke the moral and legal rules of military engagement and is therefore a criminal.’
Mr Roberts-Smith says the newspapers falsely implied his alleged conduct had disgraced his country and the army.
Nine Entertainment Co, the media giant which now owns the Herald and Age, is defending their journalists’ claims on the basis the allegations are true.
The newspapers will plead that Mr Roberts-Smith was complicit in and responsible for the murders of the six Afghanis, and that those alleged actions constituted war crimes.
Mr McClintock said the effect of the newspaper stories had been to ‘smash and destroy’ Mr Roberts-Smith’s previously exalted reputation.
‘In 2018 when this material was published there could not have been a former soldier better known or more highly respected than my client,’ Mr McClintock told the court.
In his lawsuit, Mr Roberts-Smith alleges Nine’s newspapers and its journalists Nick McKenzie (pictured), David Wroe and Chris Masters defamed him in the then Fairfax press in 2018
The parents of Mr Roberts-Smith, Len and Sue Roberts-Smith have attended each day of the trial in the Federal Court, after claiming the allegations against their son ruined their lives
Mr Roberts-Smith would be seeking aggravated damages because according to Mr McClintock, the publisher knew some of their claims to be false.
The stories had been presented in a ‘sensational’ manner, included ‘unjustifiable allegations of murder’ and had not been withdrawn.
Mr McClintock said one false allegation Mr Roberts-Smith murdered an Afghani, which was recently withdrawn by Nine, should lead to aggravated damages being awarded.
‘I will put to Your Honour that a false allegation of murder, with no basis, justifies the largest award of aggravated damages ever in this country.’
The action on September 11, 2012 involved Mr Roberts-Smith swimming a river at Darwan in Uruzgan Province and shooting dead a mid-level insurgent armed with an AK-47-style assault rifle.
An SAS patrol had been hunting an Afghani called Hekmatullah who had shot dead three Australians at their Tarik Kowt base while they were playing cards.
Australia’s most decorated soldier Ben Roberts-Smith is suing three newspapers and three journalists he says destroyed his reputation as a war hero. Mr Roberts-Smith is pictured on Wednesday arriving at the Federal Court
Mr Roberts-Smith had swum the Helmand River, killed a target and rolled the man’s body to the edge of the water where he sat him up so he could be photographed.
He explained he had done that because he had shot off the top of the man’s head and he could not easily be identified.
‘Just to put it bluntly, he didn’t have a face,’ Mr Roberts-Smith told the court.
Mr Roberts-Smith said it was ‘particularly disgusting Nine had maintained he murdered the man, who was not Hekmatullah,
‘You would think that people would be proud of someone who’s prepared to do that, in the sense that you risk your own life to try and catch somebody who had just killed three of our people,’ he told the court.
Mr Roberts-Smith denied another Nine claim that on the same mission he had kicked a shepherd called Ali Jan off a 10m cliff and ordered him to be shot.
He said there was no such an incident had taken place and he could not understand how ‘a fanciful story like that’ could be believed, let alone published in a newspaper.
Mr McClintock also referred to the capture of three Afghan men and a teenager who were travelling in a Toyota Hilux at Fazel in November 2012. The youth was allegedly ‘shaking like a leaf’ during the encounter.
Mr Roberts-Smith is also suing his ex-wife Emma Roberts, claiming she broke into his email account. She is pictured outside her Brisbane home on Friday
How Ben Roberts-Smith won his VC
Ben Roberts-Smith (pictured) joined the Army in 1996 and completed the Special Air Service selection course in 2003. He completed six tours of Afghanistan (2006-2012)
Barrister Bruce McClintock read this summary of Ben Roberts-Smith’s military service up to the battle in which he was awarded the Victoria Cross:
‘Corporal Benjamin Roberts-Smith enlisted in the Australian Regular Army in 1996. After completing the requisite courses, he was posted to the 3rd Battalion Royal Australian Regiment, where he saw active service in East Timor.
In January 2003, he successfully completed the Australian Special Air Service Regiment selection course. During his tenure with the regiment, he deployed on Operation Valiant, Slate, Slipper, Catalyst, and Slipper 2. Corporal Benjamin Roberts-Smith was awarded the Medal for Gallantry for his actions in Afghanistan in 2006.
On 11 June 2010, a troop of the Special Operations Task Group conducted a helicopter assault in Tizak, Kandahar Province, in order to capture or kill a senior Taliban commander. Immediately upon the helicopter insertion, the troop was engaged by machine gun and rocket-propelled grenade fire from multiple dominating positions. Two soldiers were wounded in action and the troop was pinned down by fire from three machine guns in an elevated, fortified position to the south of the village.
Under the cover of close air support, suppressive small arms and machine gun fire, Corporal Roberts-Smith and his patrol manoeuvred to within 70m of the enemy position in order to neutralise the enemy machine gun positions and regain the initiative. Upon commencement of the assault, the patrol drew very heavy, intense, effective and sustained fire from the enemy position. Corporal Roberts-Smith and his patrol members fought towards the enemy position until, at a range of 40m, the weight of fire prevented further movement forward.
At this point, he identified the opportunity to exploit some cover provided by a small structure. As he approached the structure, Corporal Roberts-Smith identified an insurgent grenadier in the throws of engaging his patrol. Corporal Roberts-Smith instinctively engaged the insurgent at point-blank range, resulting in the death of the insurgent.
With the members of his patrol still pinned down by the three machine gun positions, he exposed his own position in order to draw fire away from his patrol, which enabled them to bring fire against the enemy. His actions enabled his patrol commander to throw a grenade and silence one of the machine guns.
Seizing the advantage and demonstrating extreme devotion to duty and the most conspicuous gallantry, Corporal Roberts-Smith, with a total disregard for his own safety, stormed the enemy position, killing the two remaining machine gunners. His act of valour enabled his patrol to break into the enemy position and to lift the weight of fire from the remainder of the troop, who had been pinned down by the machine gun.
On seizing the fortified gun position, Corporal Roberts-Smith then took the initiative again and continued to assault enemy position in depth, during which he and another patrol member engaged and killed further enemy. His acts of selfless valour directly enabled his troop to go on and clear the village of Tizak of Taliban. This decisive engagement subsequently caused the remainder of the Taliban in the Shah Wali Kot district to retreat from the area.
Corporal Roberts-Smith’s most conspicuous gallantry in a circumstance of extreme peril was instrumental to the seizure of the initiative and the success of the troop against a numerically superior enemy force. His valour was an inspiration for the soldiers with whom he fought alongside and is in keeping with the finest traditions of the Australian Army and the Australian Defence Force.’