Lawyers for the newspapers being sued by Ben Roberts-Smith told one of his former comrades they would “steer clear” of questioning him about an alleged war crime killing he committed in Afghanistan if he agreed to testify about a key murder allegation against Roberts-Smith, it has been claimed in the federal court.
The former SAS soldier, anonymised before court as Person 56, served alongside Roberts-Smith in Afghanistan in 2009 and 2012.
Person 56 has been subpoenaed to give evidence, but is seeking to be excused from appearing. His lawyer told the court he is suffering serious health conditions and has a terminally-ill family member. “Life is a bit of a shit-fight,” the court heard on Friday.
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times over reports he alleges are defamatory and portray him as committing war crimes, including murder, as well as acts of bullying and domestic violence.
The newspapers are pleading a defence of truth. Roberts-Smith denies any wrongdoing.
In 2009, Person 56 was part of the Gothic 2 patrol commanded by Roberts-Smith that conducted a raid on the village of Darwan, in Afghanistan’s Uruzgan province. The court has heard previously that Person 56 was sent away – ostensibly to return an interpreter to another patrol in the village – during a critical stage of that mission.
The newspapers allege in their defence that on that mission Roberts-Smith took an unarmed, handcuffed Afghan farmer, named Ali Jan, forced him to kneel near the edge of a 10-metre cliff, and kicked him off, before being involved in shooting Jan and dumping his body in a nearby field.
Roberts-Smith denies the allegations, and has previously told the court “there was no cliff … there was no kick”, and that the man purported to be Ali Jan was an enemy “spotter” who was lawfully killed in a cornfield within the military’s rules of engagement.
There is dispute between the newspapers and Roberts-Smith’s legal team about…