Former elite soldier Ben Roberts-Smith told a colleague that he had shot a young, terrified Afghan man in the head and it was “the most beautiful thing I’ve ever seen”, the Federal Court has heard.
Roberts-Smith told the soldier that he had “shot that c*nt in the head. (Another soldier) told me not to kill anyone on the last job, so I pulled out my 9 mill (gun), shot the c*nt in the side of the head, blew his brains out, it was the most beautiful thing I’ve ever seen”.
The colleague, known as Person 16, was giving evidence about the alleged conversation during the defamation case brought by the Victoria Cross winner against three media organisations. Roberts-Smith denies unlawful killings and states that military rules of engagement were followed at all times.
Person 16 said that he kept quiet about the alleged conversation with Roberts-Smith because reporting it would have been a breach of the group’s “code of silence”. This would have been a “career-ending move” that would have led to being “ostracised” and put his personal safety at risk, he added.
The soldier, whose identity cannot be revealed, was part of a 2012 mission trying to find a rogue Afghan national army soldier called Hekmatullah who had killed three Australian troops two weeks beforehand. The group had been helicoptered into a remote village called Darwan in Uruzgan province, a Taliban stronghold.
Person 16 told the court that his patrol had encountered a group of four Afghan men. They handcuffed two of the men, one of whom was “a younger Afghan male” he believed was in his late teens. The man was shaking in terror, he said; “he appeared extremely nervous and trembling uncontrollably.”
Roberts-Smith’s patrol came over some time later and took away the two handcuffed men; about 15 minutes later a call of “EKIA”, meaning “enemy killed in action,” came over the radio, he said.
Person 16 said he asked Roberts-Smith a few days later, “What happened to that young fella that was shaking like a leaf?” Roberts-Smith then replied that he had shot him in the head.
This conversation left him “shocked”, Person 16 said. However, he didn’t repeat what was said because there was a “code of silence within the regiment as to these things occurring” and he feared retribution if he spoke up.
“I also think that my personal safety, I would have been in danger, by making such allegations against someone so influential,” he added.
Three years ago Ben Roberts-Smith brought defamation proceedings against The Sydney Morning Herald, The Age and The Canberra Times over a series of articles in 2018 which he claims portray him as a “war criminal”. He denies any allegation of criminality, saying that all killings were carried out lawfully in the heat of battle. He is also suing over articles claiming that he physically assaulted his then-mistress, which he strenuously denies.
A lot of ground has been covered in court this week. There’s been some crucial evidence about Roberts-Smith’s actions, given by soldiers he served with in Afghanistan. In addition, there’s been an ancillary but important skirmish about the alleged actions of his barrister, Arthur Moses SC. Moses has been accused of arranging new lawyers for two of the newspapers’ witnesses.
Both witnesses already had Defence Department-approved lawyers, and barrister Phillip Boulten SC and solicitor Peter Hodges from Mills Oakley were named in court as the two lawyers being drawn into the case.
Counsel for the newspapers Nicholas Owens SC told Justice Besanko that, “we have become aware that recently Mr Moses has made contact with Mr Phillip Boulten … and expressed to Mr Boulten concerns that the interests of [the witnesses] may not be being properly protected in relation to them being subpoenaed to give evidence in these proceedings”.
Owens said on Wednesday that the effect of Moses’ intervention was that at least one of the witnesses was thinking of dropping out of the case. There has been a sustained argument about this issue running in parallel with the defamation hearing. Soon the bar table, already crowded, will resemble a series of Russian dolls, with some of the lawyers being forced to get their own representation.
The cost of this will be substantial but probably quite insignificant in the context of the overall legal fees, which must now be millions of dollars.
This week the court placed a cache of text messages between the Victoria Cross winner and his former mistress, known as Person 17, on the public court file. (Person 17 cannot be confused with Person 16, for obvious reasons.) In it, they discuss their feelings for each other and their spouses (they were both married).
They’re painful to read, as they are extremely intimate. (Also, has neither of them heard of Signal?)
On Boxing Day 2017, the soldier tells the woman that she is “amazing” and “you make me feel like I never have before”.
“Em [Roberts-Smith’s then-wife] is feeling my lack of affection, it’s getting pretty obvious, it makes me sad but I have fallen for you and there is just no other way to describe it.”
Person 17 replied: “I know. As hard as I find being away from you — it’s the lying & pretending that’s doing my head in. We need to make this happen. The sooner we’re together the better.”
Four days later she asks him: “Have you slept with her this week?”, to which he replies “Your (sic) never out of my mind and I keep thinking about meeting your family and you meeting my girls. What we could do together and where we could go in life. To answer your question yes I have, I know she feels bad for ignoring me and admitted to just giving up on that side of things. Please don’t think I will forget about you because your (sic) all I think about.”
Roberts-Smith has previously told the court about an anonymous letter sent to his house in late 2017, giving details about the affair to his wife.
On January 9, 2018 he texted his mistress: “I just got another parcel like the letter but addressed to Emma. It was a book called 201 techniques to pleasure your husband … sent the same way as the last one.”
She replied: “Jesus! Did she see it? That’s creepy & really weird. [My husband] wouldn’t do that.”
“I hope not, it’s someone else having a go at me … but directly targeting my family which is nasty and I think I know who it is,” he replied.
The relationship continued until April 5, 2018 when he broke it off with the woman. The next day she went to his house and told Roberts-Smith’s wife all about the affair. The women appear to have found common ground and are listed as giving evidence for the newspapers at the trial.
This week, while the soldiers gave evidence, the court camera showed Roberts-Smith in the back row of the court, dressed in a suit and tie. As they spoke, the 6’7” Victoria Cross winner periodically shifted in his seat, shook his head and looked intently at his phone. Ten years after the events in question, two very different versions of these incidents are being presented to the court. It will be up to the judge to decide which is the truth.
The hearing continues.
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