The elite soldiers who eventually testified against Ben Roberts-Smith in his libel case were willing to turn a blind eye to despicable war crimes because of an SAS code of silence, a judge has been told.
Attorney Nicholas Owens SC, in his second day of closing filings for media outlets being sued for defamation, said the testimony of some of his own witnesses reflected poorly on them.
“People were willing to turn a blind eye to the most despicable and egregious violations of the laws of war,” Owens said.
“It’s… a humanly understandable flaw in a person who has worked very hard to achieve something where there’s a culture that says ‘don’t rock the boat.’
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“It doesn’t reflect well on anyone.”
Person 24 testified that he witnessed the decorated soldier execute an unarmed Afghan prisoner at a compound called Whiskey 108 in April 2009.
On the same mission, Mr. Roberts-Smith either stood by or ordered his comrade and the new Person Four soldier to shoot the other prisoner being held, to “bleed the rookie”.
While Person 24 “had no qualms” about what the Victoria Cross winner had done, he did testify because of the impact of these events on his friend, Owens said.
“Person 24 didn’t care that these two people were shot.
“Rather, he removes any obvious motive for lying to get Mr. Roberts-Smith in trouble when he is clearly concerned that Mr. Roberts-Smith may suffer consequences for doing something he didn’t think was wrong.
“(This is) the reason why I was prepared to tell the truth. Not to support the innocent victims in Afghanistan, but the Australian soldiers who were affected as a result of the illegal conduct.”
Roberts-Smith is suing The Age, The Sydney Morning Herald and The Canberra Times over 2018 reports that he committed war crimes in Afghanistan, including murder and acts of intimidation and domestic violence.
The 43-year-old denies all claims of wrongdoing, while the headlines defend them as true.
Owens said media witnesses had no reason to lie, often being coerced and unwilling to testify against their former colleague.
“The other side of the option for Your Honor is a group of closely associated witnesses united by strong ties of friendship, business and, in some cases, criminal interests,” Owens said.
“Each of whom has a powerful motive to lie, and each of whom came and gave dishonest testimony to Your Honor.”
Three Afghan witnesses testified from Kabul about a September 2012 mission to Darwan in which Roberts-Smith allegedly kicked a farmer off a cliff.
He said his accounts were riddled with factual details that contradict a presentation they weren’t there for, Owens said.
These include the SAS commandos’ scheme of maneuver, that the patrol had a black dog, an interpreter, descriptions of a tall soldier and the location of the body, all corroborated by others, he said.
“How (one of them) would know that Person Four and Person 56 on the other side of the world would say the exact same thing?”
And they went out of their way to signal their neutrality towards Australian forces, their own government and the Taliban, accepting that some insurgents were legally killed by SAS soldiers.
Earlier, Arthur Moses SC, on behalf of Mr. Roberts-Smith, presented that the media launched a sustained attack on the war hero based on rumours, rumors and conflicting accounts from jealous and obsessed former colleagues.
Moses said it wrecked his reputation and even if he vindicated himself in what was often described as the trial of the century, it would take years for him to fully recover.
Final submissions by both sides are expected to last eight days.
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