Ben Roberts-Smith accused of complicity in two more Afghan detainee killings, court hears
Ben Roberts-Smith is well deserved Victoria Cross recipient and at the time a member of the elite Australian SAS regiment. As an ex Commando take it from me the enemy is never executed where evidence exists. We are far smarter than that. We always use an enemies rifle, not ours. Aunty ABC is hell bent on destroying the elite military forces, the soy boy reporter types are out of control.
Decorated former Australian soldier Ben Roberts-Smith has been accused of being complicit in the murders of two more Afghan detainees by newspapers defending a defamation lawsuit, the Federal Court has heard.
- Ben Roberts-Smith launched defamation proceedings against three Fairfax newspapers
- A lawyer for Fairfax today accused Mr Roberts-Smith in the Federal Court of complicity in two other killings
- A lawyer for Mr Roberts-Smith responded, accusing Fairfax of changing its position
The court was told fresh allegations of a detainee being murdered at an Afghan village in 2012 came to light after the ABC Four Corners story Killing Field — alleging war crimes in Afghanistan by Australian special forces — aired in March.
The Victoria Cross recipient is suing three former Fairfax newspapers — The Sydney Morning Herald, The Age and The Canberra Times — over a series of 2018 articles that he claims defamed him.
In his statement of claim, the former Special Air Service Regiment (SAS) soldier said the articles were defamatory because they portrayed him as someone who “broke the moral and legal rules of military engagement”.
The articles contained allegations of misconduct against Mr Roberts-Smith in September 2012, which he denies and has previously labelled as malicious and deeply troubling.
Fairfax has alleged that Mr Roberts-Smith kicked handcuffed detainee Ali Jan off a cliff at the village of Darwan, in Afghanistan’s Uruzgan province, on September 11, 2012, before he was shot dead.
The newspapers then allege that Mr Roberts-Smith and another soldier, known as Person 11, covered up the shooting by falsely declaring Mr Jan as an “enemy killed in action”.
Lawyers for Fairfax today asked the Federal Court to change parts of its defence to the case, which is expected to go to trial later this year or early next year.
Mr Roberts-Smith is contesting the proposed changes.
Sandy Dawson SC, for Fairfax, told the court that his clients wanted to add fresh allegations to their defence, which relate to killings in the villages of Sola and Syahchow, both in Uruzgan province, in August and October 2012.
He said information about a killing in the village of Sola did not come to light until mid-March when Four Corners aired its report.
“During the course of the mission, an Afghan male was detained. A soldier in Mr Roberts-Smith’s patrol and under his command asked for a ‘throw-down’,” he said.
“We say that there was no legitimate basis to kill the Afghan male under the rules of engagement and Mr Roberts-Smith deploying the ‘throw-down’ was designed to make the kill appear permissible.”
Mr Dawson said the other new allegation related to Mr Roberts-Smith allegedly directing another young soldier — Person 66 — to kill an Afghan detainee in a field in Syahchow.
“After that, Mr Roberts-Smith said he had ‘blooded’ Person 66. Blooding is a term [for] the process by which a young soldier is directed to kill for the first time and is therefore ‘blooded’,” he said.
Fairfax have ‘changed their position’, lawyer says
Bruce McClintock SC, for Mr Roberts-Smith, told the court that allowing the changes would prejudice his client, causing “quite cruel stress” on him.
“Fairfax have led no evidence about the source of the information now relied on — this is stark in relation to Sola,” he said.
“What they said in the  articles are unsupportable but now they’ve changed their position.
Mr Dawson said Fairfax also wanted to make changes to its version of events on the day that villager Ali Jan was killed, including the date it occurred.
“We have always alleged that Mr Roberts-Smith kicked Ali Jan off a cliff while he was a detainee — a handcuffed detainee. There were four witnesses to that allegation,” he said.
The court was told that Mr Roberts-Smith and another soldier, known as Person 11, were present when Mr Jan was shot dead at the base of the cliff.
Fairfax lawyer cites Rogerson case
But Mr Dawson told the court the crux of its defence remained the same.
He said there was no dispute that Mr Jan was killed but Mr Roberts-Smith and Fairfax disagreed on the circumstances surrounding the death — whether it was a legitimate military killing.
The court heard that Fairfax alleges Mr Jan’s death was not legitimate and covered up, but Mr Roberts-Smith claims the Afghan man was a “spotter” for the Taliban.
“It doesn’t matter if Mr Roberts-Smith directed Person 11 to pull the trigger. It doesn’t matter if it was Mr Roberts-Smith or Person 11 who fired the fatal shot,” Mr Dawson said.
“They were both convicted of his murder on the grounds of a joint criminal enterprise.”
In 2016, Rogerson and McNamara were convicted for the murder of 20-year-old Jamie Gao during a drug deal at a Sydney storage facility in 2012.
During their trial, both Rogerson and McNamara denied pulling the trigger and blamed the other.
Mr Dawson said Fairfax’s case revolved around Mr Roberts-Smith being complicit in the death of Mr Jan as part of a “joint enterprise” so it did not matter if the former soldier fired the fatal shot.
But Mr McClintock said Fairfax was now planning to run a completely different defence.
“This is said to be a joint criminal enterprise but the first thing to point out is that there is no allegation that Ali Jan was actually shot.
“Ali Jan ended up dead so therefore there must have been an agreement [to kill him] when there’s no specifics about who pulled the trigger.”
Justice Anthony Besanko has reserved his decision.