Ben Roberts-Smith VC, MG – Defamation case
The mission was almost over, the helicopters beginning to ferry soldiers back to base, when the radio crackled back into life: “One EKIA – spotter engaged in the cornfield.”
Another “enemy killed in action”, the fourth of this mission.
It was 11.09am.
Australian SAS patrols had been in Darwan – a hardscrabble row of flat-topped, mud-walled compounds clinging to the steep banks of a river in southern Afghanistan – since dawn.
The SAS had intelligence that a man named Hekmatullah was in the village. Hekmatullah was a rogue Afghan army soldier who, three weeks earlier, had opened fire on Australian troops at a patrol base, killing three diggers. On this day, 11 September 2012, he was the SAS’s sole target.
The first death came when Cpl Ben Roberts-Smith removed his armour and swam across the Helmand River, pursuing an insurgent – who might have been Hekmatullah – seen carrying a rifle on the other side. Roberts-Smith forded the river, pursued the man through boulders, “engaged” and shot him.
Two others would be killed inside a compound by two other soldiers – those killings are being investigated by the government’s office of the special investigator.
(The soldiers accused have denied the killing was unlawful, telling the federal court the men “were armed and posed a threat to us”.)
It is the fourth death in Darwan that day that has become the centrepiece of a sprawling, complex and fiercely contested defamation case brought by Roberts-Smith against three newspapers. Evidence in the case will conclude next week.
Roberts-Smith, a recipient of the Victoria Cross and one of the country’s most decorated soldiers, argues reports by the Age, the Sydney Morning Herald and the Canberra Times defamed him by portraying him as committing war crimes, including murder, as well as acts of bullying, and one of domestic violence.
The newspapers say their reporting is true. Roberts-Smith denies all wrongdoing.
The fourth man killed that day was reportedly a farmer called Ali Jan. The newspapers allege Roberts-Smith kicked him off a cliff into a dry creek bed, before ordering two subordinates to drag the badly injured man into a nearby cornfield.
There, it is alleged, he ordered one of the soldiers to shoot Ali Jan dead.
A radio, taken from the man killed across the river, was allegedly planted on his body.
Roberts-Smith has told the court the killing cannot have happened as alleged, because “there was no cliff … there was no kick”. He said the man purported to be Ali Jan was a “spotter” – a forward scout for enemy insurgents – discovered hiding in the cornfield and carrying a radio when he defied an order to stop and was engaged and killed. Roberts-Smith said the man was a threat to Australian troops: a legitimate target lawfully killed.
Nine witnesses have given evidence to the federal court about what they saw, and what they did.
Their testimonies may prove the key contest in this trial.
The court has heard exhaustive detail of the SAS operation. Compound by compound, room by room, the soldiers worked their way down the village, “clearing” each site, rendering it safe and interrogating those inside about Hekmatullah.
Witnesses for the newspapers, including Afghan villagers and one SAS soldier, have told the court Ali Jan was taken into custody in the final compound cleared by Roberts-Smith’s patrol.
Ali Jan’s nephew, Mohammad Hanifa Fatih, gave evidence via video link from Kabul last year, just weeks before his country fell back under the control of the Taliban.
Hanifa described in detail his memory of the day.
Hanifa said he and Ali Jan were leading donkeys to the mountains to collect firewood when the soldiers arrived by helicopter, firing shots that sent them retreating back to a guesthouse in the village, where they sat and waited.
Hanifa said a military dog arrived first, which frightened his daughter. Hanifa said he was holding his daughter when the Australian troops walked up to their compound: one soldier grabbed him by the neck and tied his hands behind his back, he said.
Ali Jan was arrested and handcuffed alongside him. Through an interpreter, Hanifa told the court “a big soldier who was wet up to here” – gesturing to the bottom of his ribcage – “and with sand from the river on his uniform” punched and kicked him repeatedly as he interrogated him, still handcuffed.
The court heard evidence that Ali Jan laughed at Roberts-Smith twice while he was being interrogated.
Roberts-Smith is alleged to have marched Ali Jan to the edge of a cliff – about 10 metres high – that ran down to a dry creek bed. He allegedly took several steps back before rushing at Ali Jan, kicking him hard in the chest and causing him to fall backwards down the cliff.
A second witness, Ali Jan’s brother-in-law Shahzad Aka, also testified he had seen “the big soldier” kick Ali Jan.
An Australian soldier in Darwan that day – a member of Roberts-Smith’s patrol – also told the federal court he saw Roberts-Smith kick a man off the cliff.
Now discharged from the military, the SAS soldier anonymised before the court as Person 4, testified he was standing at the corner of the neighbouring compound when he turned back towards the detained Afghan men.
He saw a handcuffed man, standing above what he described as a “long, steep slope”, held by the shoulder by another Australian soldier, known before court as Person 11.
“At the same time I noticed Ben Roberts-Smith. He had walked to a position maybe three or four metres away. As I was trying to understand [what was happening] he turned around and walked forward and kicked the individual in the chest.
“[Person 11] was still holding the individual – the individual was catapulted backwards and fell down the slope.
“I saw the individual smash his face on a rock, and I saw the teeth explode out of his face.”
Person 4 said after the kick he followed Roberts-Smith and Person 11 down a zigzagging footpath carved into the side of the cliff that led to the creek bed.
Person 4 said the man was still alive when the soldiers reached him.
“The individual was quite dusty and had sustained a serious facial injury. As we were approaching … he attempted to sit up and then fell back down again.”
Person 4 testified that he and Person 11 followed an order from Roberts-Smith to drag the man across the creek bed underneath a tree, where he was brought to a standing position. Person 4 said he began to walk away towards the helicopter landing zone from where troops would be flown back to their Tarin Kowt base.
He said from a distance of “four or five metres”, he could hear Roberts-Smith and Person 11 speaking, but could not make out what they were saying.
He told the court he heard “two or three rounds” fired from a suppressed M4 rifle and turned to see Person 11 with his weapon lifted to his shoulder “still in a position to shoot”. The Afghan lay dead on the ground.
Person 4 testified that Roberts-Smith then told him to hand over the camera he was carrying, allegedly saying “we need to take some photos”.
In court Person 4 was shown photographs of the body of a slain Afghan man with an “ICOM” – a radio used by the Taliban – next to it.
Person 4 identified the man as the one he had seen kicked off the cliff.
Person 4 testified the man was not carrying a radio “to my knowledge”. He told the court he believed the radio, because it had water inside its screen, had come from the body of the other man, killed earlier by Roberts-Smith on the far side of the river.
“It dawned on me where [the radio] had come from … the individual from across the river.”
Person 4 told the court that back at the Australians’ barracks Roberts-Smith had told the patrol: “This is what the story is … the story is we engaged a spotter whilst moving to our HLZ [helicopter landing zone].”
The Afghan men in Darwan that day also said Ali Jan never had a radio, one telling the court Ali Jan “didn’t know how to work a watch”, let alone a radio.
“He didn’t have a wireless device, the soldiers put it on his body,” Shahzad Aka told the court.
The court has heard in detail about Ali Jan’s injury and the cause of his death. There has been particular focus on the dead man’s left wrist.
The images have not been made public – only shown to witnesses in the court – but photographs tendered in evidence show Ali Jan’s left arm, wrist and hand covered in blood.
The blood is comprehensive, except for a clean, thin stripe on his wrist: evidence, the newspapers have alleged, that Ali Jan was in handcuffs when he was killed.
Ben Roberts-Smith and Person 11 say that version of events could not have happened.
Over 11 days in the witness box last year, Roberts-Smith gave detailed evidence on Darwan. He said there was “nothing significant” in the final compounds his patrol cleared, before a call on the radio instructed them to move to the helicopter extraction point – a field on the far side of the creek bed.
The troops walked down the farmers’ footpath to the creek bed and across it.
“We moved across the river in single file and started to move up that embankment. It was Person 11, myself, then Person 4.
“Person 11 made his way up. As I started to move up the embankment, I don’t recall whether Person 4 yelled, ‘we’re definitely firing’, which drew my attention, made me move up there to support him [Person 11].”
Roberts-Smith said he scrambled to support his comrade.
He told the court by the time he climbed the embankment Person 11 was firing on a man in the cornfield.
“As I got there, he was engaging and I started to engage an individual that had already effectively – was either going down or was down.
“I fired three to five rounds … into the individual as well and saw dust and strike on the ground around him, suggesting that either my bullets were hitting him or very close to him.
“At that point, we had identified … or Person 11 had identified, that that person was a spotter and, on searching the individual, we found an ICOM radio.
Roberts-Smith said the man was a clear threat to the Australian troops.
“I was at the top of the embankment … facing him, he was two metres away,” Roberts-Smith told the court.
It was Roberts-Smith who made the radio transmission to the troop commander “saying that we had one EKIA, we had engaged a spotter … in the cornfield”.
Person 11, called as a witness by Roberts-Smith, backed his version of events. He said no fighting-aged males were detained in the final compounds at Darwan, and no prisoners were kicked off a cliff.
“I reject that allegation,” he told the court.
He testified that as he walked up the embankment, he saw the man hiding in the cornfield “at a distance of about 15 metres”.
“Shortly after coming out of the dry creek bed I identified an individual in amongst the corn,” Person 11 said.
“My assessment was this individual was moving in a very suspicious manner.
“I saw this person carrying a radio, which led me to make the assessment that this was a spotter: this person would report on our dispositions and movements … I assessed this person posed a direct threat to the extraction of our forces so I engaged.”
As he fired, “there was fire from another weapon coming from my rear right, that I later understood was coming from Mr Roberts-Smith”.
Person 11’s version of events aligns closely with that of Roberts-Smith, but the two soldiers’ versions of events are not identical. The accounts by the newspapers’ witnesses also varied at certain points.
At a distance of a decade, discrepancies in memory are inevitable. But the court faces a stark choice of two irreconcilable versions of how the fourth man died at Darwan that day. Which one they believe may prove crucial in determining the outcome of the case.