Nine’s lawyers told an emotionally fragile SAS soldier they should be able to “steer clear” of his involvement in an alleged double war crime killing if he testified against Ben Roberts-Smith, a court has heard.
Mr Roberts-Smith’s lawyers have claimed emails reveal the “deal” between Nine and the SAS soldier raises ”concerns” about the conduct of the defence in the high profile defamation trial – a claim denied by Nine‘s council.
Mr Roberts-Smith is suing Nine and its journalists over a series of articles that claim he either killed, or ordered the killing, of six unarmed Afghans while deployed with the SAS.
Nine maintains the articles are true and have called SAS soldiers to testify against the Victoria Cross recipient about the allegations.
In an extraordinary hearing on Friday morning, one of Nine’s lawyers took the stand to be questioned by Mr Roberts-Smith’s barrister, Arthur Moses SC.
The focus of Mr Moses’ questions were emails between Nine’s lawyers and the lawyers for an SAS soldier known as Person 56 in August 2021.
It‘s understood Nine hoped Person 56 would testify about a mission in Darwan, in 2012, in which Mr Roberts-Smith is accused of kicking an unarmed, bound Afghan farmer named Ali Jan off a “cliff”.
The injured farmer, on Nine’s version of events, was shot dead by another Coalition soldier as he lay in a dry creek bed below.
Mr Roberts-Smith has denied the allegations entirely and says the only person he killed that could have been Ali Jan was carrying a suspected Taliban radio in a cornfield near the dry creek.
The court had refused to hear from Person 56 because Nine could not provide an outline, or summary, of what his evidence would be before he was called to court.
That‘s because Person 56 did not want to speak with Nine, the court heard.
On Friday it was revealed Nine had again approached Person 56 in the middle of 2021 to try and get him to speak – and they offered up an “agreement”, the court heard.
Nine’s lawyer, Peter Bartlett, told the court on Friday that his colleague had approached Person 56, through his lawyers, telling him they were aware the SAS soldier was involved in a double killing.
Nine said they believed Person 56 and Mr Roberts-Smith had killed people in the town of Fasil on November 5, 2012 – according to a transcript of the conversation contained in an email.
“The 5 November incident is hotly contested. The two people killed were by BRS and a member of his patrol, which we now know to be your client,” Nine lawyer Dean Levitan said to Sean Richter – Person 56’s lawyer
“We think we can steer clear of all that stuff and limit it to Darwan.”
Mr Bartlett confirmed that Nine’s lawyers had offered not to press their questions about Fasil if Person 56 willingly spoke to them about Darwan and agreed to give evidence in court.
Mr Moses told Justice Anthony Besanko that a witness’ motivation for giving evidence was a “classic” part of assessing their credibility.
Had the email not emerged, he said, the court would not have known that Nine’s witness agreed to give evidence about Darwan in exchange for not being asked about Fasil.
The exact nature of the Fasil accusation, against Person 56, has not been aired in court.
But the court has previously heard a Toyota HiLux was pulled over at an SAS checkpoint in Fasil in November 2012 and two or three unarmed Afghans were taken away for questioning by Mr Roberts-Smith’s patrol.
The court has heard improvised explosive device components were found in the HiLux.
Nine claims Mr Roberts-Smith’s voice rang out over the radio a short time later indicating two enemies had been “killed in action”.
An SAS soldier has also told the court Mr Roberts-Smith boasted of killing one of the Afghans, a terrified teenager, saying he shot him in the head and it was “the most beautiful thing” he had ever seen.
Mr Roberts-Smith flatly denies he shot dead any Afghans his lawyers say the boasts attributed to him are the “insane” comments of an “ostentatious psychopath” from the war film Apocalypse Now.
Nine’s barrister, Nicholas Owens SC, said Nine was simply willing to get what it could off the unwilling Person 56.
“We were willing to take what we could get but the answer came back consistently – I’m not willing to talk to you about anything,” he told the court.
Mr Owens told Justice Anthony Besanko the agreement was that they would ask about Fasil – but if Person 56 objected Nine would not pursue an answer.
It would have the effect that Person 56 could refuse to answer the question on grounds of “self incrimination” and Nine would not ask the judge to force his answer.
The court heard Person 56 has a severe mental health issue, his wife is dying of cancer and did not want to give evidence – he had consistently refused Nine’s requests.
Mr Richter, on Friday, applied to have Person 56 exempted from giving evidence because no agreement had been reached to stop Mr Roberts-Smith‘s lawyers from asking about Fasil.
“There is nothing preventing (Mr Roberts-Smith lawyers) going into the rest of his military service,” Mr Richter told the court.
“There is a potential here for further harm to Person 56… The public interest is not met with this young man being put at further risk of mental harm.”
Justice Besanko will hand down his decision next week.
