A former elite soldier who was allegedly told by war veteran Ben Roberts-Smith to execute an unarmed Afghan man has objected to giving evidence about the incident in the Federal Court on the grounds he might incriminate himself.
Person 4, who was medically discharged from the SAS last year, started giving evidence on Monday in Mr Roberts-Smith’s defamation case against The Age, The Sydney Morning Herald and The Canberra Times.
Ben Roberts-Smith outside the Federal Court in Sydney earlier this month.Credit:Peter Rae
He has already told the court he witnessed Mr Roberts-Smith kick an unarmed and handcuffed Afghan man off a cliff in Darwan in late 2012, before the man was shot dead.
But Person 4, whose name cannot be revealed for national security reasons, objected to answering a question on Monday by the newspapers’ barrister, Nicholas Owens, SC, about his recollection of events during a separate mission in Afghanistan on Easter Sunday, 2009. Justice Anthony Besanko did not compel him to answer the question.
The court has previously heard evidence from a serving SAS soldier that Mr Roberts-Smith told Person 4 during the 2009 mission to shoot a captive Afghan man who had been discovered in a tunnel in a compound known as Whiskey 108.
“RS ... walked down and grabbed the Afghan male by the scruff of the shirt, picked him up, marched him a couple of metres forward [until] he was in front of Person 4,” the serving soldier, dubbed Person 41, said in early February.
“He then kicked him in the back of the legs behind the knees until he was kneeling down in front of Person 4. He pointed to the [Afghan man] ... and said to Person 4, ‘Shoot him.’”
Person 41 said he heard but did not see the shots being fired, because he did not want to look. Shortly after he heard the shots, he saw a “dead Afghan male” at the feet of Person 4, Person 41 said.
On Monday, Mr Owens asked Person 4 if he would tell the court what he recalled happened at Whiskey 108.
“Your honour, I object on the grounds that I may incriminate myself,” Person 4 said.
On Tuesday, one of Mr Roberts-Smith’s barristers, Arthur Moses, SC, returned to the subject in cross-examination.
“You’re aware, are you not, that the respondents in this case have alleged that you murdered an unarmed Afghan male on 12 April, 2009, correct?” Mr Moses said.
Justice Besanko compelled him to answer the question, and Person 4 agreed he was aware of that allegation. However, he objected to giving any evidence about the alleged incident.
Mr Roberts-Smith launched defamation proceedings in 2018 over a series of articles that he says accuse him of being a war criminal, among other claims.
He denies all wrongdoing. The media outlets are seeking to rely on a defence of truth and allege Mr Roberts-Smith committed or was involved in six murders of Afghans under the control of Australian troops, when they cannot be killed under the rules of engagement.
Another serving SAS soldier, Person 14, told the court earlier this month that he heard Person 5, the commander of Person 4’s patrol, say in front of SAS troops at their Tarin Kowt base before the Whiskey 108 mission that he was going to “blood the rookie”.
Asked what he understood that to mean, Person 14 said it referred to a new member of the troop getting a “kill”. He believed the “rookie” was Person 4.
Mr Owens asked: “Was Mr Roberts-Smith present on that occasion?”
“Yes,” Person 14 replied. The court has heard Mr Roberts-Smith was second-in-charge of the patrol led by Person 5.
Person 14 said he heard Person 5 say after the Easter Sunday mission: “I finally blooded the rookie.”
The trial continues.
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2022-03-01 05:20:30Z
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