Four Afghan witnesses set to give evidence against Ben Roberts-Smith this week are expected to be accused by the war hero’s lawyers of having Taliban links.
The villagers are all from Darwan in the Taliban stronghold of Uruzgan province and three have been described as members of the same extended family.
They claim to have witnessed an unarmed prisoner called Ali Jan being kicked off a cliff at Darwan, then hearing gunshots and seeing his dead body.
Nine newspapers including The Sydney Morning Herald allege it was Mr Roberts-Smith who pushed Ali Jan off a cliff and ordered his execution.
Ali Jan has been described as a farmer, shepherd and goat herder but further details about his identity remain mysterious.
At least three of the Darwan witnesses claim to be related to the supposedly dead man, whose existence is not conceded by Mr Roberts-Smith’s legal team.
Four Afghan witnesses set to give evidence against Ben Roberts-Smith this week will likely be accused by the war hero’s lawyers of being Taliban sympathisers. Mr Roberts-Smith, a Victoria Cross recipient, is pictured serving with the Special Air Service in Afghansitan
The villagers are all from Darwan (pictured) in the Taliban stronghold of Uruzgan province and three have been described as members of the same extended family. They claim a relative called Ali Jan was kicked off a kick at Darwan and killed while in Australian custody
On the day Ali Jan was allegedly murdered Mr Roberts-Smith’s patrol had been hunting rogue Afghan National Army sergeant Hekmatullah who shot dead three Australian soldiers near their Tarik Kowt base two weeks earlier. Hekmatullah is pictured
Once the Afghan witnesses have given their evidence in chief they will be rigorously cross-examined about their varying versions of events at Darwan.
They will be questioned about why they came forward to give their testimony and will likely be accused of being at least sympathetic to the Taliban insurgency.
Mr Roberts-Smith served in Afghanistan with the Special Air Service as part of the United States-led coalition which sought to hold back the brutal Islamic fundamentalists from 2001 until this year.
Nine originally claimed Ali Jan was shot be a member of the Afghan National Army but now alleges he was killed by Mr Roberts-Smith or another SAS soldier under his command.
Mr Roberts-Smith has given evidence he could not understand how ‘a fanciful story like that’ could be believed, let alone published in a newspaper.
The Victoria Cross recipient 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 Roberts-Smith is suing Nine in the Federal Court in what has been described as the ‘trial of the century’, a defamation hearing that has been disrupted by Covid-19.
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 suing Nine newspapers over allegations he was involved in six murders during his service in Afghanistan pictured receiving his Victoria Cross for gallantry from then Governor-General Dame Quentin Bryce in 2011. He also holds the Medal for Gallantry
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
The Afghan witnesses will be cross-examined about their varying versions of the events at Darwan. They will be questioned about why they came forward to give their testimony and will be accused of being being sympathetic to the insurgency. Taliban fighters are pictured
The Darwan witnesses will start giving their evidence on Monday via audio-visual from the Afghan capital Kabul, through a Pashtu interpreter based in Ontario, Canada.
Nine has said the witnesses’s safety was in danger in their war-torn homeland but there is no evidence that giving testimony about alleged Australian war crimes would put them at risk.
The Afghans have previously given statements to the Inspector-General of the Australian Defence Force and their identities are no secret in Afghanistan, including to the Taliban.
Mr Roberts-Smith’s legal team, led by barrister Bruce McClintock SC, will have its own Pashtu interpreter for the Afghans’ evidence.
‘These people are accusing my client – or at least one of them is – of a murder,’ Mr McClintock has previously told the court.
The three men and one woman have usually been referred to by their pseudonyms but they are Mohammed Hanifa (Person 62), Man Gul (Person 63), Shahzad Aka (Person 64) and a woman known only as Bora (Person 65).
The evidence Nine expects the four to give about what happened in Darwan has previously been outlined in another Federal Court hearing.
Nine originally claimed Ali Jan was shot be a member of the Afghan National Army but now alleges he was killed by Mr Roberts-Smith or another SAS soldier under his command
The Afghans have previously given statements to the Inspector-General of the Australian Defence Force and their identities are no secret in Afghanistan, including to the Taliban. Australian Special Operations Task Group troops are pictured in Uruzgan province in 2012
Mohammed Hanifi claims he is Ali Jan’s nephew and that on September 11, 2012 he was detained and interrogated with Ali Jan and Man Gul by Australian soldiers.
He claims he saw Mr Roberts-Smith kick Ali Jan off a small cliff and that Ali Jan was then taken into a cornfield by two soldiers of short stature, one of whom shot him.
It was not clear from the outline of his evidence if Mohammed Hanifi claims he actually saw the shooting but he says when he saw Ali Jan’s body he had been shot in the face.
Man Gul says he is a distant cousin of Ali Jan and lives next door to Mohammed Hanifi in Darwan. He says Ali Jan lived in a village about three hours away on foot.
Man Gul also claims after he, Ali Jan and Mohammed Hanifa were interrogated by Australian soldiers he heard gunfire and saw that Ali Jan had been shot in the face.
Shahzad Aka is Mohammed Hanifi’s father, with whom he lives in Darwan, and claims that Ali Jan is his wife’s brother. Shahzad Aka has lived in Darwan all his life.
He claims he saw a ‘big’ soldier kick Ali Jan off a cliff and a short time later heard gunshots. He then saw Ali Jan’s dead body with a gunshot wound to the face.
In a so-called green on blue attack, Hekmatullah murdered Lance Corporal Stjepan ‘Rick’ Milosevic, Sapper James Martin and Private Robert Poate while while they were playing cards. Long range patrol vehicles are pictured carrying Sapper Martin and Private Poate’s coffins
Nine 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. Australian soldiers are pictured on patrol near Darwan in 2011
Bora, whose surname has not been revealed in court, claims she saw a person she was told was Ali Jan kicked off a cliff by a soldier and shortly afterwards heard gunshots.
The four witnesses gave statements to the Inspector-General of the Australian Defence Force in Afghanistan in July 2019.
The Australian Federal Police were in the country at the same time gathering evidence and Nine says it became aware of the four witnesses two months later.
Mr Roberts-Smith, who the newspapers accused of involvement in six murders during his service in Afghanistan, has denied taking part in any unlawful killings.
Australia’s most decorated soldier says that the day Nine claims Ali Jan was murdered in Darwan the only Afghans killed were Taliban insurgents.
His SAS patrol had been hunting rogue Afghan National Army sergeant Hekmatullah who had shot dead three Australian soldiers near their Tarik Kowt base on August 29.
In a so-called green on blue attack, Hekmatullah murdered Lance Corporal Stjepan ‘Rick’ Milosevic, Sapper James Martin and Private Robert Poate while while they were playing cards.
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 Australians had intelligence that Darwan villagers had been harbouring Hekmatullah and they went in to capture or kill the rogue Afghan soldier.
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 but he was not Hekmatullah.
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.
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.
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.
The Sydney Morning Herald ran this front page investigation into allegations of war crimes committed in Afghanistan on the weekend of June 9 and 10, 2018. The story contained claims about Ali Jan being kicked off a cliff and killed
Shown a picture of a steep incline of 7 to 10m in the area, Mr Roberts-Smith said, ‘A cliff is a cliff – and that’s not a cliff to me.’
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.
Nicholas Owens SC, for Nine, said Mr Roberts-Smith and others had moved Ali Jan’s body into the cornfield and planted a radio on him as part of a cover-up.
McClintock has told the court there were no witnesses to any murder.
‘The allegation is actually ludicrous, that my client killed an unarmed man outside in full view,’ he said. ‘It did not happen.
‘If someone called Ali Jan did die, then it was because he was a spotter, sitting in a cornfield killed legitimately by [Mr Roberts-Smith] or Person 11.’
Arthur Moses SC, for Mr Roberts-Smith, told the Federal Court’s Justice Wendy Abraham in May the credibility of the four Afghan witnesses would be challenged.
‘What is immediately obvious from the outlines of evidence, Your Honour, is that their accounts of course don’t necessarily corroborate each other,’ Mr Moses said.
‘But they are certainly at odds with what the applicant states occurred. Those accounts are also inconsistent with what Person 11 says occurred.’
Former Taliban fighters are pictured with their weapons after joining Afghanistan’s government forces in Herat province in March 2012