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Afghan with prosthetic leg ‘marched off’ by Ben Roberts-Smith before being found dead, court hears | Ben Roberts-Smith

A disabled man found hiding in a tunnel during a raid on an Afghan village compound was led away in handcuffs by Ben Roberts-Smith and another soldier before he was later found dead from gunshot wounds outside, a serving member of the SAS told the federal court.

The testimony relates to a raid by Australian SAS troops on a compound called Whiskey 108, in the village of Kakarak in Uruzgan province on 12 April 2009, the site of two key allegations made by newspapers in their defence to Roberts-Smith’s defamation claim: that he was involved in the execution of two unarmed men found in the compound.

Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of ­reports he alleges portray him as committing war crimes, including murder.

The newspapers are pleading a defence of truth. Roberts-Smith denies all wrongdoing, including the newspaper’s claims regarding Whiskey 108.

Subpoenaed by the newspapers to give evidence in the case against his former comrade, the still-serving SAS soldier, anonymised as Person 40 before the court, said once the Australian troops had “fought-through” the heavily bombed compound, they found a small tunnel, secreted in a courtyard.

Person 40 said Australian soldiers – through an interpreter – called for anybody hiding inside the tunnel to come out, and two Australian soldiers went in. Person 40 told the court two Afghan men came out of the tunnel.

“Once they came out, they were obviously very frightened. One had a distinctive limp, that’s the person with the prosthetic leg.

“Immediately coming out of his tunnel he was lifting his trousers, pointing to the prosthetic leg, expecting some sympathy from the troops.”

Person 40 said the second man was balding and had a beard.

He said the men were searched, “and from there they were marched off to another area, by Ben Roberts-Smith and Person 35 [another Australian soldier]”.

“My understanding is that they would be TQed (tactically questioned), and Ben Roberts-Smith was the lead TQer on the ground. [TQ is] a quick set of questions to get some information and gain some advantage.”

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Person 40 said he expected the men to be taken back to the Australians’ Tarin Kowt base: “That’s the SOP (standard operating procedure).”

But, under questioning, Person 40 told the court no prisoners were taken back to Tarin Kowt from that mission. He said he believed the men were Taliban.

Person 40 said he was later standing guard when he heard a burst of gunfire fired “from about 30 metres away”. He did not see the shots fired, but recognised by sound the weapon as an F89 Para Minimi machine gun, which was carried by few Australian soldiers.

Leaving Whiskey 108 at the conclusion of the raid, Person 40 said he walked past the dead body of the man with the prosthetic leg lying outside the compound.

Shown a picture of the slain man in court, Person 40 said he recognised him as the man with the prosthetic leg found in the tunnel, and that he had seen the picture previously, stuck to the wall of the SAS’s unofficial Afghan bar on base, the Fat Ladies’ Arms.

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So far in this trial, four Australian soldiers have told the court they saw two men emerge alive and unarmed from the tunnel at Whiskey 108. One of those soldiers has given evidence he put his head and shoulders in the tunnel and saw the men in there.

A fifth soldier has given evidence he saw the men at the tunnel entrance in the custody of Australian troops.

Lawyers for Roberts-Smith have put it to each of those witnesses that their testimony about people in the tunnel was false.

One soldier, Person 41, told the court he later saw Roberts-Smith “frogmarch” the man with a prosthetic leg outside the compound, throw him to the ground and machine-gun him to death. Under cross-examination, Person 41 conceded he had not reported what he had allegedly seen to his superiors because he “just wanted to keep quiet about the whole thing”. “I was a new trooper, on my very trip with the SAS… it’s the unwritten rule – you go along with whatever happens,” he said.

Another soldier, Person 14, said he saw an unidentified Australian soldier carrying a distinctive weapon, a Minimi machine gun, throw a human-shaped object to the ground and fire a burst of bullets into it. He said he later saw Roberts-Smith carrying a Minimi during that mission but said he did not intend to suggest that Roberts-Smith was involved in the shooting and that other members of the patrol “potentially” carried Minimis.

Roberts-Smith has consistently denied those versions of events, describing them as “completely false”.

He said no people were taken out of the tunnel in the compound.

“There were no people in the tunnel at Whiskey 108,” he told the court.

In his evidence last year, he said he killed the man with a prosthetic leg outside Whiskey 108 because the man was a legitimate target, armed and running, and was killed in accordance with troops’ rules of engagement.

“[He was] not running directly at me, but coming on an arc,” Roberts-Smith told the court. “He had his hand over the top of the weapon, because he was carrying it down next to his body like that… hunched over, as in, running like that with his shoulders down.”

Under cross-examination on Wednesday, Arthur Moses put it to Person 40 that his testimony was incorrect, and that he had invented details, such as the presence of an interpreter on the mission.

“There was no interpreter there on that day. What do you say about that?”

“I disagree,” Person 40 said.

“Have you always had that memory?”

“That’s the truth.”

Moses put it to Person 40 he was removed from his patrol for poor performance and situational awareness. Person 40 said that was incorrect and that he was asked to take responsibility for training Afghan National Army soldiers during that deployment.

Person 40 remains a serving member of the SAS.

The newspapers allege in their defence that a second man allegedly pulled out of the tunnel at Whiskey 108, an elderly man, was executed by another Australian soldier on Roberts-Smith’s orders.

Roberts-Smith denies being involved in any execution at Whiskey 108, or any unlawful killings during his service in Afghanistan, and says there were no people in the tunnel and he did not give an order to execute anybody.

The court has previously heard the prosthetic leg of the man killed on the mission was souvenired by another soldier and taken back to the Australian barracks where it was used as a celebratory drinking vessel. There is no evidence Roberts-Smith ever drank from the leg, and he has told the court he never did.

Person 40 remains in the witness box. The trial, before Justice Anthony Besanko, continues.

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