A strong omertà inside Australia’s SAS induced troopers to “flip a blind eye to essentially the most despicable and egregious breaches of the legal guidelines of struggle”, Ben Roberts-Smith’s long-running defamation trial has heard.
On the second day of closing submissions, Nicholas Owens SC, appearing for the newspapers being sued by Roberts-Smith, stated witnesses, together with these known as by the newspapers, had been reluctant to report alleged struggle crimes due to a “pervasive tradition” that pressured new troopers particularly to “toe the road” of the regiment’s tradition.
“Folks had been prepared to show a blind eye to essentially the most despicable and egregious breaches of the legal guidelines of struggle,” Owens stated, discussing the testimony of a junior SAS trooper who informed the court docket he witnessed Roberts-Smith machine-gun to demise an unarmed disabled man, and order one other junior soldier to execute an aged man throughout a mission in 2009.
“It's … a humanly comprehensible flaw in an individual who has labored very onerous to realize one thing the place there's a tradition that claims ‘don’t rock the boat’.
“It doesn’t replicate properly on anybody.”
One other soldier on the identical 2009 mission, raiding a compound codenamed Whiskey 108 within the southern Afghan village of Kakarak, informed the court docket he noticed Roberts-Smith kill the disabled man, telling the court docket he believed it was an “exhibition execution”.
Anonymised earlier than the court docket as Particular person 24, he informed the court docket he had been compelled by power of subpoena to offer proof: “I nonetheless don’t agree with the very fact[Roberts-Smith] is right here, beneath excessive duress, for killing unhealthy dudes we went there to kill.”
Owens, in his closing submission, stated Particular person 24’s reluctance to testify “moderately removes any apparent motive to deceive get Mr Roberts-Smith in hassle when he's clearly troubled that Mr Roberts-Smith may undergo penalties for doing one thing he didn't suppose was mistaken”.
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Occasions for defamation over 2018 stories he alleges defame him as a struggle prison and assassin. He denies any wrongdoing.
The newspapers are defending their reporting as true, together with allegations Roberts-Smith dedicated six murders whereas deployed to Afghanistan as a member of the SAS, was a bully and a perpetrator of home violence.
On Tuesday, Owens stated the troopers subpoenaed to offer proof by the newspapers had been reluctant to look in court docket, had not communicated or colluded, and had no motive to lie, however that, in contrast, Roberts-Smith, and the witnesses known as by him, had been motivated to current false proof.
“The opposite facet of the choice for Your Honour, is a bunch of intently related witnesses certain by ties of robust friendship, enterprise, and in some circumstances, prison curiosity,” Owens stated.
“Every of whom has a strong motive to lie, and every of whom, we are saying, gave dishonest proof to Your Honour.”
Owens accused a number of of Roberts-Smith’s witnesses of “outright dishonesty”, giving proof that was contradicted by documentary proof and countervailing testimony earlier than the court docket.
The court docket heard in vital element submissions on proof relating to one of many key allegations in opposition to Roberts-Smith: that the Victoria Cross recipient had been concerned within the murders of two males found hiding in a tunnel at a compound known as Whiskey 108, within the village of Kakarak in southern Afghanistan in 2009.
The newspapers allege the 2 males had been unlawfully killed throughout the mission: one, a disabled man who had a prosthetic leg, was allegedly “frog-marched” exterior the compound, thrown to the bottom and machine-gunned to demise by Roberts-Smith; the second, an aged man, was allegedly murdered by an inexperienced Australian SAS soldier on the orders of his superior, Roberts-Smith, in a “blooding” incident.
Roberts-Smith denies the killings ever occurred as alleged. He informed the court docket persistently “no males got here out of the tunnel”.
Roberts-Smith stated he killed the person with the prosthetic leg, however encountered him exterior the compound the place the person was armed with a rifle, and operating round a nook. The person was a reliable rebel goal who posed a menace to Australian troopers and was lawfully engaged and killed, Roberts-Smith informed the court docket.
The newspapers allege the aged man was executed on Roberts-Smith’s orders contained in the compound’s courtyard, close to to the doorway of the tunnel. Particular person 4, the junior trooper alleged to have been ordered to kill the person – and to have pulled the set off – refused to reply questions on his actions at Whiskey 108, on the grounds of self-incrimination.
However Roberts-Smith informed the court docket the aged man was shot and killed in motion exterior the courtyard by one other Australian soldier whose identification he doesn't know. Roberts-Smith informed the court docket the aged man’s physique fell about three metres from that of the person with the prosthetic leg, and was left exterior the courtyard.
After initially telling the court docket the aged man’s physique was “dragged again behind the wall”, Roberts-Smith modified his proof, saying he recalled the physique was not moved after he was killed.
Owens informed the court docket there was corroborated and unchallenged testimony the person’s physique fell contained in the courtyard, and was seen there by troopers and documented as being there.
In his submission, Owens cited the testimony of the Australian soldier who documented the our bodies of Afghan nationals killed on the mission: that soldier, Particular person 18, informed the court docket the aged man’s physique was “contained in the compound … roughly close to the tunnel entrance”, and that his contemporaneous reporting on the physique’s location – “NW CORN [north-west corner] Tunnel” indicated it was mendacity contained in the tunnel courtyard.
Owens stated images taken of the aged man’s physique present chopped grass close to to his physique, the type that was discovered disguising the tunnel entrance, in addition to cooking buildings and a container of palm oil – gadgets usually discovered inside, not exterior, compounds.
It was submitted that this proof was an “intractable drawback” in Roberts-Smith’s model of occasions.
“The placement of the outdated man’s physique has proved an intractable drawback for Mr Robert-Smith’s case. We are saying it’s proved an issue for his case as a result of, in truth, the outdated man’s physique was contained in the tunnel courtyard.”
Closing submissions for the newspapers are anticipated to proceed till late this week earlier than Roberts-Smith’s legal professionals could have the chance to make their closing submissions.
A judgment is just not anticipated for a number of months.
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