An Afghan villager has conceded he did not see Ben Roberts-Smith – or anyone else – shoot dead a prisoner whose execution the war hero is accused of having ordered.
Instead, he saw ‘the big soldier’ kick a farmer he knew as Ali Jan in the midriff before he heard gunshots and later found his dead body.
Mohammed Hanifa was the first of four Afghan witnesses to give evidence for Nine newspapers in the Federal Court defamation action brought against them by Australia’s most decorated soldier.
He had spent all his life in the village of Darwan, where Ali Jan was allegedly killed, until recently moving to Afghanistan’s capital.
Mr Roberts-Smith, 42, is suing Nine newspapers at the Federal Court trial in Sydney over media reports alleging he was involved in war crimes including murdering prisoners in Afghanistan. He is pictured arriving at court on Monday
The alleged murder of Ali Jan is the centrepiece claim in a series of stories Nine newspapers published in 2018 accusing Mr Roberts-Smith of war crimes. Mr Roberts-Smith is pictured in Aghanistan after the June 2010 battle in which he earned the Victoria Cross
Mr Hanifa said he had six sisters and 12 brothers and lived in Darwan with his father Shahzad Aka, one of whose two wives is Ali Jan’s sister.
He was in the village on September 11, 2012 when Australian Special Air Service troopers came looking for a rogue Afghan soldier called Hekmatullah.
Hekmatullah had shot dead three Australian soldiers near their base at Tarin Kowt two weeks earlier.
Mr Hanifa, who gave his testimony via audio/visual link from Kabul, swore on oath in Allah’s name to tell the truth and spent much of his time in the witness box picking his nose.
The 38-year-old said he did not know Hekmatullah but had grown up with Ali Jan, although he lived in another village three hours’ walk from Darwan.
In the days before Ali Jan allegedly died, ‘drivers’ had come to the village offering a $500 reward for information about Hekmatullah.
Ali Jan, he said, was a married father-of-three engaged in irrigation, grazing cattle and selling wood.
Mr Hanifa, who could not read or write, was unable to say exactly when Ali Jan died but thought it was about eight years ago.
‘I understand the days of the weeks and know the names of the months but I don’t know the years,’ he told the court.
The villagers giving evidence against Mr Roberts-Smith are all from Darwan (pictured) in the Taliban stronghold of Uruzgan province and three have been described as members of the same extended family
Asked if he remembered what season it was when Ali Jan died he said, ‘Of course I remember. It was summer.’
Mr Hanifa denied Ali Jan was connected to the Taliban – ‘no, nothing like that’ – or any sort of fighter. ‘No, he was providing for his children and he was protecting his family and his property,’ he said.
The alleged murder of Ali Jan is the centrepiece claim in a series of stories Nine newspapers published in 2018 accusing Mr Roberts-Smith of war crimes.
Nine newspapers including The Sydney Morning Herald allege Mr Roberts-Smith pushed Ali Jan off a cliff and ordered his execution.
Mr Roberts-Smith has told the Federal Court he did not mistreat any prisoner, there was no unlawful killing and there was not even a cliff at Darwan.
Mr Hanifa said Ali Jan had come to Darwan to mill wheat and was planning to collect woods from the mountains. He had two donkeys with him.
Australian troops aboard helicopters are pictured searching for Hekmatullah in the Gizab region of Uruzgan province after he murdered three of their comrades in August 2012
The day Ali Jan was allegedly killed Mr Hanifa was at a guest house with his neighbour Man Gul when he saw helicopters carrying soldiers arrive on the outskirts of the village.
‘I told him there was a raid,’ he said. Ali Jan was beside a creek with two donkeys heading towards the house.
‘I took one of the donkey from him thinking that we will look like nomads and the foreign forces will think that we are nomads,’ Mr Hanifa told the court.
‘Two shots were fired at us so we returned back. We had the donkeys with us and we stopped at the guest house.’
Back at the guest house Man Gul brought the pair tea while his daughters tied up the donkeys. They cut up a melon to eat.
Australian troops, including the Special Air Service, were based at Tarin Kowt during the war in Afghanistan. Four Afghans from Darwan will give evidence from Kabul about the alleged unlawful killing of a man called Ali Jan in their village on September 11, 2012
Soldiers came into the village and one confronted Mr Hanifa. ‘He told me to get up or stand up. I told Ali Jan not do to that because in these types of situations the soldier shoots you.’
The soldier grabbed Mr Hanifa by the neck and hit his against a wall, he told the court.
Mr Hanifa said he and Man Gul were detained and he was accused by one of the men in uniform of being a member of the Taliban.
‘Then he took out a pistol and he put it on my throat. He put it there and he said, ‘You are a Talib. I shot your father.’
‘Then he pointed the pistol to my head and he hit me with the pistol and he said, “Show me Hekmatullah, otherwise I will shoot you in your head”.’
Mr Roberts-Smith is pictured with his barrister Bruce McClintock SC outside court on Monday. The war hero is 202cm – or 6’6′ – tall
Mr Hanifa said he was ordered to look into the eyes of a ‘big soldier’ while he was being interrogated and when he looked away that soldier punched him ‘many, many times’.
Nine will suggest the ‘big soldier’ is Mr Roberts-Smith, who is 202cm (6’6″ tall).
Mr Hanifa said the big soldier also kicked him twice in the abdomen before the interrogators turned their attention to Ali Jan.
‘I told Ali Jan, “Don’t laugh or don’t smile because they do not like when you smile or when you laugh,’ he told the court.
Mr Hanifa said when the big soldier said something to Ali Jan, whose hands were tied, he smiled. The big soldier then kicked him ‘really hard’ and Ali Jan fell on his back.
‘He was rolling down, rolling down, until he reached the river,’ Mr Hanifa said.
‘At that time, the big soldier, he shouted. Also a shot was fired.’ Mr Hanifa said he saw two other soldiers drag Ali Jan to a berry tree and heard more shots.
He did not see the big soldier again and did not see Ali Jan being killed.
Mr Hanifa later followed a trail of blood and found what he said was the body of Ali Jan. He had one arm behind his back and his hands were not tied.
Ali Jan had been shot in the face, the left side of the head and the belly, he claimed. He was then shown a photograph taken that day of a dead man with a radio and bag near his body.
‘This was Ali Jan,’ he said. ‘They put those things with his body.’
Under cross-examination Mr Hanifa said he had not seen any shots fired at Ali Jan by anyone, including the big soldier.
Mr Roberts-Smith is pictured receiving his Victoria Cross for gallantry from then Governor-General Dame Quentin Bryce in 2011. He also holds the Medal for Gallantry
The Afghans giving evidence against Mr Roberts-Smith have previously given statements to the Inspector-General of the Australian Defence Force. Australian Special Operations Task Group troops are pictured in Uruzgan province in 2012
‘I don’t know if he fired the shots or someone else,’ he told barrister Bruce McClintock SC for Mr Roberts Smith.
‘I told you that I saw Ali Jan being dragged to this tree, after that I didn’t see him,’ he told the court.
‘Shots were fired, whether you consider this a lie or a truth is up to you.’
Mr Hanifa is the first of four Afghan witnesses set to give evidence for Nine from their war-torn homeland this week.
Rogue Afghan National Army sergeant Hekmatullah (pictured) dead three Australian soldiers near Tarik Kowt in August 2012
The others are Man Gul, Shahzad Aka and a woman known as Bora.
They are all from Darwan in the Taliban stronghold of Uruzgan province and the three men have been described as members of the same extended family.
The witnesses ae giving their testimony through a Pashtu interpreter based in Ontario, Canada. Mr Roberts-Smith’s lawyers have their own translator in Sydney.
Mr Roberts-Smith, who Nine newspapers accused of involvement in six murders during his service in Afghanistan, has denied taking part in any unlawful killings.
He says that the day Nine claims Ali Jan was murdered the only Afghans killed were Taliban insurgents.
Early in the mission Mr Roberts-Smith had swum the Helmand River and shot dead a an insurgent armed with an AK-47-style assault rifle.
Nine alleges that near the end of the mission Mr Roberts-Smith and members of his patrol detained, handcuffed and questioned Mohammed Hanifa, Man Gul and Ali Jan.
The newspapers claim Mr Roberts-Smith forced Ali Jan to kneel at the edge of a cliff while still handcuffed and then took a number of steps back before kicking him hard in the midriff.
The former SAS corporal’s legal team argues their client is a victim of a lying campaign by journalists and failed soldiers jealous of his stellar military career and Victoria Cross
Mr Roberts-Smith is suing newspapers including the Sydney Morning Herald which ran this front page investigation into allegations of war crimes committed in Afghanistan on the weekend of June 9 and 10, 2018
According to Nine, Ali Jan fell over the cliff and landed in a dry creek bed below. The impact of the fall was so great it knocked Ali Jan’s teeth out of his mouth.
Nicholas Owens SC for Nine asked Mr Hanifa if there had been an embankment or slope up from the creek bed. ‘No, nothing like that, no slope, anything like that,’ he said.
Nine alleges Ali Jan was moved by two soldiers to the other side of the creek bed where he was shot by Mr Roberts-Smith or another SAS member called Person 11, or both.
Mr Roberts-Smith has given evidence that no such incident ever took place and disputed there was even a drop he would consider a cliff at Darwan.
Instead of having executed a prisoner, Mr Roberts-Smith said he was nearby when Person 11 engaged and killed a Taliban ‘spotter’ in a cornfield.
The trial was suspended on June 29 after a month of hearing because of Sydney’s Covid-19 lockdown and the inability of interstate witnesses to give evidence.
Lawyers for Nine and Mr Roberts-Smith have been required to be in court to hear the Afghans’ evidence, despite the lockdowns.
What we know about Ben Roberts-Smith and his ‘trial of the century’
Victoria Cross recipient Ben Roberts-Smith is pictured on deployment in Afghanistan
Ben Roberts-Smith is suing Nine-owned newspapers The Sydney Morning Herald and The Age, plus The Canberra Times over allegations he committed battlefield crimes including murder.
His case, being heard in the Federal Court in Sydney, was expected to last ten weeks but has been delayed by Covid-19. It is being bankrolled by his employer, the Seven Network’s billionaire owner Kerry Stokes.
Mr Roberts-Smith served six operational tours in Afghanistan with the elite Special Air Service and left the regular army in 2013 with the rank of corporal.
He was awarded the Victoria Cross for actions at Tizak in June 2010 and the Medal for Gallantry for an earlier battle near the Chora Pass in May 2006.
The newspapers will plead that Mr Roberts-Smith was complicit in and responsible for the murders of six unarmed prisoners in Afghanistan, and that those actions constituted war crimes.
Nine alleges Mr Roberts-Smith killed insurgents who had been captured and none of the killings was the result of decisions made in the heat of battle.
Mr Roberts-Smith has also been accused of bullying other SAS troopers and punching a woman in the face after a Parliament House function in 2018, which he denies.
The 42-year-old says some of his onetime colleagues who are making allegations against him are jealous of his feats of soldiering and are telling lies.
Mr Robert-Smith’s ex-wife Emma Roberts, the mother of his two children, is expected to give evidence for the publisher after ‘flipping’ sides.
Ms Roberts’ friend Danielle Scott, John McLeod – a former bodyguard of drug smuggler Schapelle Corby, Afghan witnesses and 21 serving and former SAS members will also be called by Nine.
Mr Roberts-Smith’s team will call evidence from witnesses including SAS comrades.