The SAS soldier who accused Ben Roberts-Smith of kicking an Afghan villager off a cliff a decade ago suffers from multiple mental health issues and is on numerous medications that impact his memory, a court has heard.
It comes as the Federal Court has heard the SAS soldier could have any testimony about another alleged murder used against him in international war crime prosecutions.
Ben Roberts-Smith is suing Nine newspapers and journalists over a series of articles that allege he killed six unarmed Afghans, known as Persons Under Confinement (PUCs).
The decorated SAS veteran denies every allegation while Nine claims the allegations are true.
The newspapers have called multiple SAS witnesses to testify about two missions – a raid on a compound known as Whiskey 108 in 2009 and a raid on the village of Darwan in 2012.
Person 4, as the latest SAS witness is known, told the court he witnessed Mr Roberts-Smith kick handcuffed Afghan Ali Jan down a steep drop into a dry creek bed at the end of the Darwan raid.
Mr Jan’s teeth were knocked out as his head struck a rock, Person 4 claimed, and minutes later another SAS soldier shot the unarmed Afghan dead.
Person 4 told the court he was “in shock” witnessing the alleged war crime killing and claimed a radio was placed on Mr Jan’s body.
Mr Roberts-Smith has totally denied that allegation and said he helped another SAS soldier shoot dead a Taliban spotter, carrying a radio, in a cornfield at Darwan.
His barrister, Arthur Moses SC, began cross examining Person 4 on Tuesday.
Person 4, under cross examination, told the court he was medically discharged from the Australian Defence Force last year, after taking leave, because of mental health conditions.
Mr Moses ran through a list of Person 4’s mental health diagnoses, and about 10 medications prescribed to the former soldier.
The court heard Person 4 suffers “memory impairment”, nightmares, intrusive thoughts as well as “ruminations” and “flashbacks”.
Person 4 told the court he had taken antipsychotic medication but had stopped prior to being hospitalised in August 2021 because it “had me in a fog all day”.
“The minutiae of things was fading away, the big detail definitely not,” Person 4 told the court.
The SAS veteran and his psychiatrist had spoken about the impacts of giving evidence at the high profile defamation trial and it could have dire consequences for his mental health.
The highly sensitive medical information was aired in court after Person 4’s barrister, Ben Kremer, asked to have parts of it suppressed.
Dr Kremer has previously warned about the significant impact giving evidence could have on Person 4.
But Mr Moses argued, on Tuesday, the court should not “obliterate” Person 4’s memory issues from the public record.
“He came here, made the allegation about (Darwan) 2012, and I can’t in public test his memory about that allegation,” Mr Moses said.
“If I spent half a day cross examining him about his medical condition the public somehow will never know about it – it never happened.”
Justice Anthony Besanko suppressed the names of Person 4’s diagnoses and medications but allowed Mr Moses to cross-examine the SAS soldier about his memory and medical history.
Person 4 was expected to be asked about the Whiskey 108xjmtzyw raid, in 2009, in which Nine claims he shot a captured Afghan in the head.
The court has heard somewhat contradictory claims that Mr Roberts-Smith either ordered the killing or was silently complicit as another soldier gave the order to Person 4.
Mr Roberts-Smith has denied any allegation that he was involved in “blooding” Person 4.
Person 4 objected to answering questions about the Whiskey 108 raid on Monday after his barrister told the court its “immunity certificates” did not offer protection from prosecution in international courts.
Justice Besanko was told that the International Criminal Court, which prosecutes war crimes, may use the evidence to initiate or guide an investigation and prosecution even if Australian courts cannot directly reference Person 4’s testimony.
Person 4 again objected to answering a question about Nine’s “blooding” allegation – but Justice Besanko flagged he would require the SAS soldier to answer that question on Tuesday afternoon.
The hearing continues.
