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Ben Roberts-Smith leaves the federal court in Sydney
Ben Roberts-Smith denied giving ‘deliberately and knowingly false sworn answers’ to questions about soldiers in Afghanistan as his cross-examination continued in the federal court. Photograph: Dean Lewins/AAP
Ben Roberts-Smith denied giving ‘deliberately and knowingly false sworn answers’ to questions about soldiers in Afghanistan as his cross-examination continued in the federal court. Photograph: Dean Lewins/AAP

Ben Roberts-Smith denies Afghan man killed in Australian raid was handcuffed

This article is more than 2 years old

Former soldier spends sixth day in witness box as dramatic photographic evidence presented at defamation trial

An Afghan man killed during an Australian SAS raid on a village had blood all over his wrist – except for a clear straight “stripe” where there was no blood – indicating he was wearing handcuffs when he was shot, it was put to Ben Roberts-Smith in dramatic photographic evidence before the federal court.

Roberts-Smith spent Friday – his sixth straight day – in the witness box, being cross-examined over allegations he committed war crimes, including murdering unarmed civilians after they had been captured.

A recipient of Australia’s highest military honour, the Victoria Cross, Roberts-Smith is suing three newspapers he says defamed him by accusing him of breaking “the moral and legal rules of military engagement” in committing those war crimes.

The evidence before court on Friday centred on one of the key allegations against the former SAS corporal, the death of a farmer called Ali Jan in Darwan in September 2012.

The court has heard two starkly conflicting versions of events.

The newspapers have alleged Ali Jan was among three Afghan civilians taken into custody, and handcuffed inside a compound in Darwan.

After Ali Jan laughed twice at Roberts-Smith 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.”

Ali Jan was then shot on Roberts-Smith’s orders, the newspapers allege.

Roberts-Smith has vociferously denied this account, telling the court the man purported to be Ali Jan was a ‘spotter’ – a forward scout who reports soldiers’ movements back to insurgents – who was discovered hiding in a cornfield by Person 11 as he climbed an embankment from the creekbed, immediately opening fire upon the insurgent.

Roberts-Smith said he climbed the embankment – using one hand to pull himself up – to assist Person 11 in the firefight and also fired at the man, who was about two metres away.

The man was killed and, Roberts-Smith said, found to be in possession of a radio.

Nicholas Owens SC, appearing for the newspapers, showed Roberts-Smith pictures of the man’s body, taken after he had died, showing large amounts of blood covering his arm and wrist, except for a thin “stripe” of clean skin that had no blood on it.

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Owens said that was “consistent with this man wearing flexicuffs” when he was shot, indicating he had been brought into custody, was unarmed and could not legally be killed.

“This man was wearing flexicuffs when he was shot wasn’t he?” Owens said.

“No he wasn’t,” Roberts-Smith said.

Owens said the flexicuffs around the man’s wrists “left that stripe free from blood around his wrist”.

“No.”

Owens showed Roberts-Smith another photo showing significant injury to the man’s chest and arms.

“When this man was shot, his arms were handcuffed behind his back weren’t they?”

“No they weren’t.”

Further photos showed significant injuries to the man’s mouth.

“This man suffered that injury when he hit his mouth falling down into the creekbed didn’t he?”

“No.”

Owens put it to Roberts-Smith that he kicked Ali Jan in the chest, causing him to fall down the steep 10-metre incline into the dry creekbed.

It was put that Roberts-Smith and Person 11 then walked down a narrow path into the creekbed, saw that Ali Jan was seriously injured, but alive, and then one or both shot him dead.

“At that point the man’s handcuffs were removed, an ICOM (radio) was placed on his body, Person 4 (another SAS soldier) performed SSE (sensitive site exploitation) and took photos of him,” Owens said.

“You, Person 11 and Person 4 all discussed how to cover up the killing.” The body was then dragged into the cornfield.

Roberts-Smith replied: “That’s false.”

Person 4 is slated to give evidence in the trial, called by the newspapers. Person 11 is listed as a witness for Roberts-Smith.

In a series of fractious interchanges, Owens accused Roberts-Smith of giving “deliberately and knowingly false sworn answers” to questions about the actions of other soldiers in Afghanistan, as well as his own knowledge of their actions.

“I deny that.”

The court also heard detailed exchanges over the killing of a man outside a compound called Whiskey 108 in 2009. The man had a prosthetic leg that was later souvenired by another soldier and used as a drinking vessel at the SAS’s unofficial on-base bar, the Fat Ladies’ Arms.

Roberts-Smith has given evidence the man was a Taliban insurgent armed with a rifle and was a legitimate target, killed legally under the rules of engagement.

He said he “saw the insurgent moving across in front of him … running … with his shoulders hunched over” and carrying his weapon in one hand. In a split second decision he opened fire and killed the man.

In court documents, the newspapers allege Roberts-Smith carried the man, who was unarmed, outside the compound, before throwing him to the ground and shooting him “10 to 15 times” with a machine gun.

The debate in court on Friday was over where the man was shot, whether Roberts-Smith had moved the body to disguise the illegality of the killing, and whether the man was a legitimate target or a “person under control”, who could not be killed.

Roberts-Smith is expected to be back in the witness box for most of next week.

Roberts-Smith, one of the most decorated soldiers in Australian military history, is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of ­reports published in 2018. He alleges the reports are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes, including murder.

The 42-year-old has consistently denied the allegations, saying they are “false”, “baseless” and “completely without any foundation in truth”. The newspapers are defending their reporting as true.

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