Bonds of silence broken as soldiers testify against Roberts-Smith
When Justice Paul Brereton released his long-awaited report into war crimes allegations against Australia’s special forces in November 2020, he named no names, given that referrals of specific incidents would almost certainly be passed to specialist criminal investigators.
But Brereton noted the Omerta-like code of silence that prevailed among members of the storied SAS.
It was a code, he said, that prized, above all, “loyalty to one’s mates, immediate superiors and the unit… in which secrecy is at a premium and in which those who ‘leak’ are anathema”.
This week saw that code broken wide open, as hearings resumed in the high stakes Ben Roberts-Smith defamation case and the courtroom, media, and the public witnessed for the first time soldier turning against soldier.
In dramatic evidence which culminated in fresh revelations on Friday afternoon, two serving members of the SAS testified this week that they witnessed, on separate occasions, Roberts-Smith order the killing of unarmed Afghan detainees, while on a third occasion, the Victoria Cross recipient himself allegedly pulled the trigger in an unlawful slaying.
The first serving trooper to take the stand on Wednesday morning – after a 6-month hiatus in the case triggered by the pandemic – was a man identified only as Person 41. (All special forces members who will be testifying in coming weeks will have their identities protected, under court and national security orders).
The media, barred from the courtroom, could only hear his evidence via secure audio-visual link. Yet even without seeing his face, journalists learnt quite a lot about Person 41.
Ben Roberts-Smith departs Federal Court after another day in his defamation case.Credit:Janie Barret
A specialist signaller with SAS’s second squadron G-troop, Person 41 had been in the regiment just a few months when he was deployed to Afghanistan in February, 2009. He’d previously been a long-time member of the armed forces, first with the navy, then the army, before transferring to the commando regiment in 2002, and finally securing highly-prized entry to the SAS in 2007. Currently Person 41 is stationed at the army’s special operations training centre on Swan Island in Victoria.
The second serving SAS member who started giving evidence on Friday – designated Person 14 – is a veteran of East Timor, Iraq and eight missions in Afghanistan. Both men sought, and have been granted, what are known as section 128 certificates providing them legal cover against self-incrimination.
The Sydney Morning Herald and The Age have accused Roberts-Smith of committing or being party to up to six unlawful killings in Afghanistan. The media outlets have also accused the Victoria Cross recipient of bullying some comrades and striking a former lover. He has vigorously denied all allegations, and says the stories against him were driven by jealous colleagues who resented his being awarded the VC.
Person 41 testified to events he saw unfurl inside and outside an Afghan village compound designated Whisky 108, on Easter Sunday, 2009, during an SAS clearance operation designed to root out the Taliban.
In the first instance, he alleged, he saw Roberts-Smith haul an unarmed Afghan detainee to his feet, kick him to his knees, and order a more junior SAS trooper (designated Person 4) to shoot the man on the spot.
In the second instance, Person 41 said he saw Roberts-Smith outside the compound shortly afterwards, dragging another Afghan male by the collar or shoulder before flinging him onto his stomach and using a Minimi machine gun to shoot him in the back. This second Afghan had a prosthetic leg which later became used as a crude drinking vessel by SAS troopers back at their headquarters.
Roberts-Smith has vigorously contested Person 41’s version of both events, telling the court in evidence last year that the individual with the prosthetic limb was an enemy combatant slain in action, while the other Afghan was shot in combat by another, unidentified, SAS member.
Roberts-Smith’s barrister, Arthur Moses, SC, did his best this week to punch holes in Person 41’s account, forcing him to concede that his memory of other aspects of the day was not exact.
But the SAS trooper remained staunch in his description of what occurred in the Whiskey 108 courtyard after he and other members of his troop entered it.
He described the discovery of a tunnel, around five to six feet deep, in a corner of the courtyard which his troop leader, Person 29, started calling down into.
He then left the courtyard to search two nearby rooms, and returned after hearing a “commotion” to find Roberts-Smith and Person 4, with the Afghan detainee. He said they asked him to hand over the suppressor on his M4 assault rifle which Person 4 then fitted to his own rifle while Roberts-Smith kicked the man down and told Person 4, to “shoot him”.
Arthur Moses, SC, (centre) the barrister for Ben Roberts-Smith arrives at the Federal Court.Credit:Kate Geraghty
Person 41 turned away because, he said, he didn’t want to witness what was about to happen.
When he re-entered the courtyard, some 15 or so seconds later, he saw the detainee lying dead, while Person 4, looking “in a bit of shock”, handed the still-warm suppressor back to him.
Moses has sought to portray Person 41’s initial departure from the courtyard as an act of cowardice, putting to the soldier that he was “scared” of what the tunnel might contain. The barrister accused him of making up the story of the execution to cover his guilt at failing to “have the back” of his patrol leader and of failing to “cut it” as a soldier that day. Person 41 was unwavering: “I know what I saw”.
Moses also demanded to know why, for 11 years, Person 41 failed to report the incidents to his superiors or lodge official complaints about what had occurred. (Under the Australian army’s rules of engagement in Afghanistan no harm was meant to befall detainees who had been disarmed).
Person 41’s explanation was a textbook example of the syndrome Brereton had described, a world where the worst thing an SAS trooper could do was break the unspoken bonds of silence.
He feared if he had spoken up earlier that he would have broken the “unwritten rule” that “you just go along with whatever happens”, he said. He feared being judged as “someone who wasn’t willing to conduct the tasks of an SAS trooper”, of being shunned, and of losing the job he loved and had worked so hard to obtain.
Person 41 admitted that he, along with many others, had participated in many drinking sessions using the prosthetic leg. It was something that now caused him shame, he added.
But he did not speak of any ill feelings towards Roberts-Smith. He said he grew worried when he heard about the defence force Inspector-General’s inquiries because he “didn’t want to dob anyone in” and thought that while others had an axe to grind against Roberts-Smith, he didn’t want to be involved.
Person 14’s evidence, which the court started hearing on Friday, has also been damaging.
Person 14 was stationed on the outside perimeter of Whiskey 108 on Easter Sunday 2009, with the role of scout for his troop, mapping the route which the soldiers were to take into the compound. He gave a graphic account of conditions on the day: overcast, the troopers sodden from trying to cross rickety bridges across aqueducts, some falling or tripping over in the water, and pushing on through soaking poppy fields.
As he kept watch outside Whiskey 108, he recounted seeing three Australian soldiers throw a “black object… similar to a human” to the ground before one of the troopers raised their Minimi machine gun and fired an extended short burst into the “object”. Person 14 turned to a comrade and said,“What the hell was that!”. He said he was unable to recognise the soldier who fired the weapon. Later, at a lay-up point, he saw Roberts-Smith carrying it.
Special Air Service Regiment soldiers, part of the Special Operations Task Group in Tarin Kot, wait for a lift in a US helicopter to their patrol area in Afghanistan.Credit:ADF
Person 14 also testified that prior to the Whiskey 108 operation he’d heard one of the patrol leaders talk about the need to “blood the rookie” (meaning the newest recruit, Person 4) – a phrase first exposed in the reporting by investigative journalists Chris Masters and Nick McKenzie of alleged SAS atrocities in Afghanistan. After the Whisky 108 mission was over, Person 14 said he heard Person 5 (a patrol leader) say “I finally blooded the rookie”.
In other damaging evidence late on Friday, Person 14 also described seeing Roberts-Smith interrogate an unarmed prisoner in an operation in Khaz Oruzgan in October 2012. When a weapons cache was discovered in a wall nearby, Roberts-Smith ordered an Afghan army member, via an interpreter, to shoot the detainee on the spot. The soldier complied with the order, Person 14 said.
However much they knew it was coming, the events in the Roberts-Smith hearings this week will be sending a deep chill through Australia’s special forces community.
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