A former SAS soldier has sought to avoid answering concerns more than allegations he murdered an unarmed Afghan civilian for the duration of a raid by Australian troops in 2009, telling the federal courtroom “I object on grounds of self-incrimination”.
The evidence of the previous soldier, anonymised ahead of court as Individual 4, came as section of a defamation action introduced by his previous comrade, Victoria Cross receiver Ben Roberts-Smith.
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Moments more than reports he alleges are defamatory and portray him as committing war crimes, like murder, as properly as acts of bullying and domestic violence.
The newspapers are pleading a defence of truth. Roberts-Smith denies any wrongdoing.
The newspapers declare in their defence that Roberts-Smith ordered the alleged murder of an aged Afghan male by Person 4 throughout a raid on a compound called Whiskey 108, in the village of Kakarak on 12 April 2009.
A further Australian SAS soldier – recognized as Human being 41 – previously gave proof that two Afghan guys, a single elderly, were uncovered hiding from Australian troops in a top secret tunnel in a courtyard inside the Whiskey 108 compound.
Man or woman 41 mentioned when the two guys were being uncovered, Human being 4 and Ben Roberts-Smith borrowed the suppressor from his weapon. Individual 41 advised the court docket he observed Roberts-Smith grab the elderly man “by the scruff of his shirt”, walk him right until he was in entrance of Particular person 4, and power him to his knees.
“RS [Roberts-Smith] pointed to the Afghan and said to Man or woman 4, ‘shoot him’,” Man or woman 41 advised the courtroom.
Man or woman 41 stated he stepped into a place off the compound to steer clear of seeing what he believed was about to take place. He explained he listened to a muffled spherical fired from an M4 rifle, and waited “15 or so seconds” before stepping back into the courtyard.
He reported Roberts-Smith was no extended in the courtyard, but Person 4 was standing previously mentioned the Afghan male, who was lifeless from a single bullet wound to the head. Roberts-Smith has earlier told the courtroom the allegation he had requested the person shot was “completely false”.
Human being 4, who was medically discharged from the defence pressure past calendar year, was requested by Arthur Moses SC, symbolizing Ben Roberts-Smith: “Are you aware that the respondents in this case [the newspapers] have alleged you murdered an unarmed Afghan male on 12 April 2009?”
“Your honour, I object on grounds of self-incrimination,” Human being 4 advised the judge.
After vociferous legal debate, Justice Anthony Besanko dominated Man or woman 4 was demanded to remedy the query.
Human being 4 claimed “yes”, he was knowledgeable he had been accused of murder.
Moses questioned Man or woman 4 no matter whether he was anxious that he had been subpoenaed – “unwillingly” – to give proof in the demo brought by his previous comrade.
“You have been nervous that the respondents may possibly place to you their allegation that you unlawfully killed an Afghan male on 12 April 2009.”
Man or woman 4 objected to answering yet again: “My only hesitation is in dread of incriminating myself.”
The decide, this time, did not compel Particular person 4 to response the dilemma.
“Thank you, your honour,” he replied.
A lot of Individual 4’s testimony focused on his mental overall health next his military services company, which included 7 deployments to Afghanistan with the SAS.
The judge ordered the suppression on reportage of the former soldier’s health conditions, and the names of the medicines he has been approved.
But Moses advised courtroom Person 4 has endured from “flashbacks, nightmares, distressing reminiscences of traumatic events” subsequent his army services.
Man or woman 4 informed the courtroom he experienced “recurring thoughts … with that arrives a feeling of dread and … flashbacks sometimes”.
He agreed with Moses that he at times professional memory decline.
“I believe the trivialities of matters was fading absent, modest aspects – substantial particulars, certainly not,” he said.
He denied assertions by the barrister that he seasoned “hallucinations”, was “hearing points that are not real”, was worried “someone is striving to hurt you,” or read “people screaming”.
He also denied dealing with “any confusion about occasions you consider you have experienced”.
Moses told the courtroom Human being 4’s health concerns ended up exacerbated by currently being subpoenaed by the newspapers to give proof.
“We’re talking about a vulnerable human being with substantial mental overall health troubles, with assertions currently being built, brazenly, that this particular person murdered an unarmed Afghan male on 12 April 2009.”
Moses told the courtroom a “side deal” had been accomplished between Individual 4 and legal professionals for the newspapers, whereby the newspapers’ attorneys experienced agreed not to question Human being 4 about the gatherings at Whiskey 108, in exchange for Human being 4 supplying evidence about yet another raid at Darwan in 2012.
In that raid, Roberts-Smith is alleged to have kicked a handcuffed, unarmed civilian off a cliff ahead of the person was shot lifeless by an additional soldier underneath Roberts-Smith’s command.
Man or woman 4 informed the court he experienced seen Roberts-Smith kick the handcuffed gentleman off the cliff: “I saw the particular person smash his experience on a rock, and I observed the teeth explode out of his facial area.” Individual 4 stated Roberts-Smith requested him and another subordinate to drag the man underneath a tree, wherever he was shot by the other soldier following discussion with Roberts-Smith.
Roberts-Smith has earlier advised the court this version of situations could not have occurred because there was no cliff and the male killed was an enemy spotter, lawfully killed just after he was encountered hiding in a field.
Moses mentioned the “transaction, arrangement, side deal, whichever they wish to get in touch with it” struck concerning Human being 4 and the newspapers’ lawful workforce undermined the trustworthiness of his evidence.
“The witness is, in outcome, being motivated to give evidence, in trade for [lawyers for the newspapers] not find to have him compelled to respond to queries about an alleged murder. That goes to his [Person 4’s] believability and the reliability of his other evidence.”
He explained the hanging of a pre-demo arrangement was highly improper and experienced been performed without the need of the knowledge of the courtroom. He claimed the newspapers’ legal professionals had mentioned, in effect, “we’ll just take this from you, so we can sink Mr Roberts-Smith in this demo, but we will not question you about your murder”.
Nick Owens SC, performing for the newspapers, has argued there was no settlement, nor any inappropriate arrangement, simply that he had made a forensic choice not to press particular thoughts if the witness objected.
All through cross-examination, Man or woman 4 informed the courtroom he was approached by customers of the media to chat about functions in Afghanistan, but he did not reply. He advised the courtroom he thought an SAS comrade, Particular person 6, was encouraging individuals to discuss with the media “to discredit Ben Roberts-Smith”. He agreed with Moses that Man or woman 6 “wanted to carry Mr Roberts-Smith down”.
Person 4 stays in the witness box. The demo proceeds.