A “vulnerable” SAS soldier says his lawyers discussed an “agreement” that, if he testified Ben Roberts-Smith had kicked an unarmed Afghan off a cliff, then Nine wouldn’t force him to testify about another alleged war crime execution.
Ben Roberts-Smith is suing Nine newspapers and journalists over a series of articles that allege he killed six unarmed Afghans.
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 on Monday, 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.
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 focusing on the soldier’s mental health and claimed he had been offered a “side-deal” with Nine.
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”.
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.
Person 4 said he had discussed with his psychiatrist that giving evidence in the trial could increase his risks of self harm.
Mr Moses told the court he believed Nine had made an offer to Person 4 if the “vulnerable” soldier did not ask to be excused from giving evidence on mental health grounds.
The agreement, as alleged by Mr Moses, was that Nine would not press Person 4 to answer questions about Whiskey 108 if he willingly gave evidence about Darwan.
The court has heard Person 4 was “blooded” when either Mr Roberts-Smith or another senior SAS soldier ordered him to execute an unarmed Afghan captured at Whiskey 108.
Mr Roberts-Smith has denied any allegation that he was involved in “blooding” Person 4 in the April 2009 raid.
“Why is it that (Person 4) is here saying what he’s saying about Darwan?” Mr Moses put to the court.
“Why is he here about (Darwan) but they won’t ask him about (Whiskey 108) – that there was an alleged execution by this person on Easter Sunday?”
Mr Moses claimed Nine was happy to allow Person 4 to object to questions about Whiskey 108 if they could use the Darwan evidence to “sink Mr Roberts-Smith” in the trial.
Person 4 was shown what was described as an email between his lawyers and Nine’s.
“The agreement, if there was one, I wasn’t fully aware of it,” Person 4 told the court.
“I was told there was a potential but it was not fully confirmed.”
Person 4 said he is unsure if any deal was reached with Nine.
Person 4, this week, objected to answering questions about the Whiskey 108 raid 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.
Ninxjmtzywe revealed, late last week, they had done a similar deal with another SAS witness known as Person 56 who the newspapers claim was involved in killing two more unarmed Afghans with Mr Roberts-Smith.
“We think we can steer clear of all that stuff and limit it to Darwan,” Nine‘s lawyers told Person 56’s legal team, the court heard.
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.
Nine’s barrister, Nicholas Owens SC, said Nine was simply willing to get what it could off the unwilling Person 56.
The trial continues.
