Legal professionals for Ben Roberts-Smith have urged the court docket listening to a defamation trial to reject the testimony of three Afghan males who gave proof towards the Australian soldier in his defamation trial, saying they regarded overseas troops as “infidels” and gave “inconsistent and contradictory” proof.
“To say they're credible is unimaginable,” Roberts-Smith’s barrister, Arthur Moses SC, informed the federal court docket in closing submissions within the former soldier’s long-running defamation motion.
Roberts-Smith, a recipient of the Victoria Cross, is suing for defamation the Age, the Sydney Morning Herald, and the Canberra Instances over stories he alleges falsely painting him as a conflict legal, bully and home abuser.
The newspapers are defending their reporting as true. Roberts-Smith denies all wrongdoing.
Three males from the southern Afghan village of Darwan gave proof to the trial final 12 months, testifying by video hyperlink from a Kabul regulation agency within the weeks earlier than the Taliban retook management of Afghanistan.
Two of them informed the court docket they noticed a “large soldier” – whom the newspapers allege to be Roberts-Smith – kick an unarmed, handcuffed farmer referred to as Ali Jan off a cliff. They stated they discovered Ali Jan’s physique – which had been shot by means of the jaw, cranium and chest – in a close-by cornfield.
An Australian soldier, Individual 4, informed the court docket he noticed Roberts-Smith kick a person off the cliff, and watched the person hit his face on the cliff as he fell. However this model of occasions was rejected by Roberts-Smith and the soldier alleged by the newspapers to have been concerned in taking pictures the person, Individual 11. They each informed the court docket the person was a authentic rebel goal who was carrying a radio, and that they lawfully killed him after discovering him hiding within the cornfield.
In closing submissions, Moses urged Justice Anthony Besanko to ignore the Afghan witnesses’ proof, saying the boys have been prejudiced towards Australian troopers.
“These witnesses after all regarded Australian troopers as infidels, it's plain that they consider if an infidel is killed, the one who kills them turns into a martyr [sic]: that's hardly a impartial place.”
He stated the witnesses had been moved from their village in Darwan and housed in a safehouse in Kabul – with their lease, meals and different bills met – for months whereas they waited to offer proof. Moses argued that this indebted them to the newspapers, and made them prepared to help their model of occasions.
Moses argued there was “no clear contemporaneous proof as to the geography of the realm together with, importantly, the cliff … which it's stated Ali Jan was kicked off”.
A photograph of Darwan taken from an overwatch place confirmed “it’s extra like a sandy knoll”, Moses stated. “I imply, there are greater knolls at Bondi seaside right here in Sydney or Henley seaside in Adelaide,” he informed Besanko. Besanko lives in South Australia, however has commuted to Sydney for this trial.
Moses stated one Darwan witness, Mohammed Hanifa Fatih, had informed the court docket that “the massive soldier” – whom the newspapers allege to be Roberts-Smith, and identifiable as a result of his uniform was moist from having swum alone throughout a close-by river – had spoken to him and different detained males in Pashtu.
“Mr Roberts-Smith has numerous skills, as we all know, however he doesn’t communicate Pashtu,” Moses stated.
In his proof, Roberts-Smith informed the court docket he had been skilled in “very fundamental” Pashtu instructions.
“When you have been speaking with a PUC [person under control] throughout an assault it might solely be utilizing very fundamental phrases that we have been taught … phrases equivalent to ‘cease’, ‘get down’, even ‘put your arms up’.”
Final week in his closing submissions, Nicholas Owens SC, for the newspapers, stated the proof from the Afghan witnesses was credible, complete and in step with the proof of the Australian soldier Individual 4.
“[The Afghan witnesses] all spoke of being in that last compound set, seeing a tall soldier moist from the waist down, seeing somebody kicked off a cliff all at the very same time, the very same date, in the very same location, that Individual 4 described,” Owens informed the court docket.
“There isn't any try [from Roberts-Smith] to elucidate how it's that the proof of Individual 4, a soldier on this facet of the world, might correspond so carefully with the proof of the three Afghan witnesses on the opposite facet of the world.”
The newspapers of their defence allege that on the finish of the mission to Darwan, Roberts-Smith murdered Ali Jan – who had been taken prisoner by Australian troops – in a “joint legal enterprise” together with his subordinate, Individual 11.
It's alleged that in an interrogation, Roberts-Smith walked Ali Jan, sure in handcuffs, to the sting of a cliff earlier than kicking him within the chest, inflicting him to fall greater than 10 metres right into a dry riverbed.
The defence alleges that Australian troops then walked down a zigzag path to the riverbed, from the place Ali Jan, nonetheless alive however badly injured, was dragged to a close-by cornfield and shot both by Roberts-Smith or by Individual 11 at Roberts-Smith’s path.
Roberts-Smith has denied the allegation, telling the court docket in his proof the person presupposed to be Ali Jan was a “spotter” found hiding in a cornfield and carrying a radio, who refused an order to cease. He was a authentic goal, he stated, lawfully killed in accordance with the legal guidelines of conflict.
“There was no cliff … there was no kick,” he informed the court docket.
Individual 11 informed the court docket he was first to see the person hiding within the cornfield, and engaged him, backed by Roberts-Smith, because the Australian troops moved up an embankment in the direction of their helicopter extraction level.
The trial will conclude this week. A judgment just isn't anticipated for a number of months.
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