Ben Roberts-Smith’s defamation lawsuit against Nine newspapers has resumed with the first SAS witness taking the stand after Sydney’s virus outbreak silencedxjmtzyw the nationally significant court case for six months.
Mr Roberts-Smith alleges he was falsely accused of war crimes by Nine newspapers and its journalists when they said he was involved in six killings in Afghanistan.
Nine stands by its articles claiming the former SAS Captain either killed or ordered the killing of Afghans who had been detained through various missions.
Mr Roberts-Smith took the stand in mid-2021 to emphatically reject each and every killing at times breaking down in tears recalling the horrors of the war in Afghanistan.
NSW, at that stage, was in the infancy of its Covid-19 Delta outbreak and the spiralling cases forced the trial to adjourn until it became safe for the dozens of lawyers, witnesses, journalists and spectators to sit in Justice Anthony Besanko’s Federal Court.
The trial temporarily resumed to hear from Afghan villagers who gave evidence, via videolink from Afghanistan, before the trial adjourned yet again.
Justice Besanko, on Wednesday morning, reopened the trial noting that about six months had passed since the trial had sat.
The intervening months have been a near-endless slog of administrative hearings and rulings of what documents and witnesses will be included when Nine opens its case.
Nine’s barrister, Nicholas Owens SC, told the court he would call his first witness known only as Person 41.
Person 41 told the court he joined the Australian Army in 1998, deployed to East Timor with Australian troops in 1999 and then later joined the SAS.
He was deployed four times in 2009, 2010, 2012 and finally in 2013 and remains in the SAS.
Nine spent the morning examining Person 41 about a raid on a Taliban compound codenamed Whiskey 108 in 2009.
Mr Roberts-Smith was part of the SAS assault on Whiskey 108 where multiple suspected Taliban fighters were killed.
Among them was an older man with a prosthetic leg – Nine claims he was executed by Mr Roberts-Smith.
But Mr Roberts-Smith told the court a different story – he said he spotted the armed man hurrying around the corner of the compound.
Mr Roberts-Smith said he shot the man with two machine gun bullets before his gun jammed.
Another SAS operator, standing nearby, then shot a second insurgent who rounded the corner, Mr Roberts-Smith told the court in his evidence last year.
But Mr Owens put to Mr Roberts-Smith that the two men had been hiding in a tunnel beneath Whiskey 108 and surrendered to the Australian troops.
“There were no men in the tunnel … that is completely false,” Mr Roberts-Smith said.
Mr Owens put to Mr Roberts-Smith that he carried or “manhandled” the second man outside the compound, threw him to the ground and shot him with an “extended burst” of his machine gun until it jammed.
Mr Roberts-Smith denies that.
Nine’s case is expected to last at least a month with more than a dozen witnesses who can travel to Sydney.
It’s unclear whether nine or 10 more SAS witnesses, who live in Western Australia, will be able to give evidence due to the state’s draconian border closures.
