Lawyers for the newspapers being sued by Ben Roberts-Smith told one of his former comrades they would “steer clear” of questioning him about an alleged war crime killing he committed in Afghanistan if he agreed to testify about a key murder allegation against Roberts-Smith, it has been claimed in the federal court.
The former SAS soldier, anonymised before court as Person 56, served alongside Roberts-Smith in Afghanistan in 2009 and 2012.
Person 56 has been subpoenaed to give evidence, but is seeking to be excused from appearing. His lawyer told the court he is suffering serious health conditions and has a terminally-ill family member. “Life is a bit of a shit-fight,” the court heard on Friday.
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times over reports he alleges are defamatory and portray him as committing war crimes, including murder, as well as acts of bullying and domestic violence.
The newspapers are pleading a defence of truth. Roberts-Smith denies any wrongdoing.
In 2009, Person 56 was part of the Gothic 2 patrol commanded by Roberts-Smith that conducted a raid on the village of Darwan, in Afghanistan’s Uruzgan province. The court has heard previously that Person 56 was sent away – ostensibly to return an interpreter to another patrol in the village – during a critical stage of that mission.
The newspapers allege in their defence that on that mission Roberts-Smith took an unarmed, handcuffed Afghan farmer, named Ali Jan, forced him to kneel near the edge of a 10-metre cliff, and kicked him off, before being involved in shooting Jan and dumping his body in a nearby field.
Roberts-Smith denies the allegations, and has previously told the court “there was no cliff … there was no kick”, and that the man purported to be Ali Jan was an enemy “spotter” who was lawfully killed in a cornfield within the military’s rules of engagement.
There is dispute between the newspapers and Roberts-Smith’s legal team about how long Person 56 was separated from his patrol, and where he and the interpreter were during the period that Ali Jan was allegedly in custody and allegedly murdered.
Person 56 was also present on an SAS operation in Fasil, in southern Uruzgan province, on 5 November 2012.
Last week, the court heard evidence from a soldier who claims Roberts-Smith boasted about shooting a captive, unarmed and handcuffed Afghan teenager who had been a passenger in a ute stopped by Australian troops. The newspapers allege Roberts-Smith shot him with his pistol, and the court heard from a former comrade last week who said Roberts-Smith told him: “I pulled out my 9mm, shot the cunt in the side of the head, blew his brains out. It was the most beautiful thing I’ve ever seen.”
Roberts-Smith also denies that allegation, and has told the court he never used his pistol while on deployment in Afghanistan.
The federal court heard on Friday that the newspapers believe Person 56 was also responsible for killing a person during the Fasil mission.
An emailed transcript of a phone call from a lawyer for the newspapers to Person 56’s counsel was read into court: “We know that Person 56 was the other person involved in the mission in Fasil and that he was a person who killed somebody.”
Lawyers for the newspapers have been seeking, over a number of years, to have Person 56 appear in this trial. Person 56 is seeking to be excused from giving evidence on account of the mental harm it would cause him.
Peter Bartlett, counsel for the newspapers, appeared in the witness box on Friday and told the court: “Person 56 was a member of the applicant’s patrol on two crucial missions. We have always taken the view that he would be in possession of information that would be in the benefit of this court.”
But Arthur Moses SC, acting for Roberts-Smith, told the court that after Person 56 said he would seek to be excused from his subpoena to give evidence, lawyers for the newspapers approached Person 56’s lawyer seeking an agreement for him to appear if they acceded to only ask about the Darwan mission and not to question him on events at Fasil.
“The 5 November incident is hotly contested,” the account of the phone call between one of the newspapers’ lawyers and Person 56’s lawyer said. “The two people killed were killed by Ben Roberts-Smith and a member of his patrol we know to be your client [Person 56]. We think we can steer clear of all that stuff and just limit it to Darwan,” the email cited in court said.
Moses said it was clear evidence of an agreement between the newspapers’ lawyers and Person 56. Bartlett, who was not a party to the conversation referred to by Moses, disputed his characterisation of the discussions between the lawyers as a “deal”.
Lawyers for Roberts-Smith have argued the agreement goes to the credibility of Person 56’s evidence if a “side deal” has been done with the newspapers. Lawyers for the newspapers have countered they were simply being transparent with the witness, and making a “forensic decision” about which matters to pursue, noting the highly unusual evidence, and the difficulties faced by Person 56 in giving evidence.
Nicholas Owens SC, for the newspapers, said the negotiations with Person 56 were “perfectly proper”.
“We were willing to engage with Person 56 on the basis that we did not wish to adduce evidence from him that would incriminate him.
“This isn’t a ‘tell us everything’, this is a ‘tell us what you are willing to give us’,” he said.
Owens told the court that Person 56 had indicated “an objection would be taken to any questioning on any topic other than Darwan on the grounds of [potential] self-incrimination”.
“We accept that he has a reasonable basis for anticipating that that evidence would incriminate him. We accepted that we would not apply to have him compelled to give that evidence over his objection,” Owens said.
Justice Anthony Besanko asked from the bench: “That’s unusual isn’t it?”
Owens replied: “These are unusual circumstances. It is a situation that a witness has information about two matters, but, for reasons that are obvious, is very unwilling to give evidence about the second of those matters.”
Sean Richter, acting for Person 56, said the former soldier was seeking to be excused from appearing because giving evidence, particularly about the events at Fasil, would be damaging for his health. The court imposed a suppression order on the nature of his health conditions.
Richter said there was “the potential here for further harm to Person 56” and told the court “there needs to be a balancing act between the public interest in having him give evidence as opposed to his personal interests”.
Richter said any “deal” with the newspapers’ lawyers about what would be asked would offer “no protection”.
“It’s not as simple that the respondents [newspapers] only wish to ask about portions about his military service, there is nothing preventing the applicant’s [Roberts-Smith’s] counsel from going to the remainder of his military service.”
Justice Besanko has reserved his decision, likely until next week. The trial resumes Monday.