Final witness in the long defamation case Ben Roberts-Smith, a senior SAS member, says he never had any personal knowledge of how two Afghan men were killed in a Taliban complex.
Key points:
- The high-profile defamation case should end soon, as the latest testimony is heard
- The final statements will then be heard by both parties
- Ben-Roberts Smith has denied the crime, while Nine Entertainment is relying on a defense of the truth
Nicknamed Persona 81, the witness was a troop commander during a deployment in Afghanistan in 2009, when Australian soldiers stormed a complex called Whiskey 108.
It is one of the key missions in Federal Court proceedings, after Roberts-Smith claimed he was defamed by the 2018 reports in The Sydney Morning Herald, The Age and The Canberra Times.
The stories contained allegations of unlawful murder, school harassment and domestic violence, which the recipient of the Victoria Cross says are false.
Nine Entertainment, which seeks to defend the truth, claims that two men came out of a secret courtyard tunnel after Whiskey 108 was bombed and searched, before being taken prisoner and killed illegally. .
Mr. Roberts-Smith said there were no men in the tunnel. (Supplied)
Person 81 has told the court that he entered the premises once he was declared safe and did not observe that anyone was being taken prisoner.
He thought he had seen the tunnel and had not seen any Afghans leave.
However, witnesses from previous soldiers, Person 40 and Person 43, have told the court that Person 81 was present when two men surrendered.
Person 81 was shown photographs of the bodies of two men.
A pistol was found inside the tunnel. (Provided by the Federal Court of Australia)
Nine’s lawyer Nicholas Owens SC asked the witness if it was correct to say that he never had any personal knowledge of how the men were killed.
“I’d say that’s accurate,” said Person 81.
Mr. Owens put the specific case of Nine to him; that one of the men was executed by another soldier, Person 4, at the behest of his superior, Person 5.
“I can’t tell,” said Person 81.
He gave the same answer when asked about the accusation of the second man, who had a prosthetic leg, was shot by Mr. Roberts-Smith.
The court heard a report from the patrol, which was authorized for release by Person 81, which contained reference to two “squirters”, or people trying to flee the scene, dying.
Person 81 agreed that these details would have been things they told him after the mission.
Later, during cross-examination, Mr. Owens again told Person 81 that the two men found in the tunnel were taken prisoner and executed “without your knowledge or permission.”
“I wouldn’t speculate, for my recollection of the facts, I couldn’t speculate on that,” he replied.
Mr.’s lawyer Roberts-Smith, Arthur Moses SC, asked Person 81 if he saw any conduct of Person 4, Person 5, or Mr. Roberts-Smith who made him suspect he had taken someone prisoner or murdered him.
“No,” he replied.
Roberts-Smith says two men killed that day legitimately engaged when armed insurgents found themselves outside the Whiskey 108 building.
Several witnesses summoned by the newspapers have given evidence of seeing a man or men coming out of the tunnel, while several Roberts-Smith witnesses testified that it contained items such as weapons and ammunition, but not people.
The court will hear the legal arguments about the documentary tenders on Friday and then pause while the final submissions are prepared and delivered at a later date.