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Soldier ‘stuck to guns’ despite credit attack by Roberts-Smith’s lawyers, court told
A soldier who witnessed Ben Roberts-Smith giving a direction to shoot an unarmed man had his credit vigorously and “possibly wrongfully” attacked by witnesses and lawyers, a court was told.
Naomi Neilson
Nicholas Owens, counsel for The Sydney Morning Herald, The Age and the Canberra Times, told the Federal Court on Thursday (15 February) that the soldier’s refusal to back down from his account despite the attack put an “underlining tick” under his evidence.
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The soldier, known only as Person 14 for legal reasons, told Justice Anthony Besanko’s original defamation trial he witnessed Mr Roberts-Smith direct an Afghan Partner Force soldier – dubbed Person 12 – to shoot an unarmed prisoner “or I will” via a translator.
Justice Besanko found Person 14’s account to be honest and reliable. While it may not be pressed on appeal, Mr Owens said it is an important reason why Justice Besanko was correct to find Mr Roberts-Smith was responsible for the murder of Afghanistan men.
Mr Owens said Person 14 became the subject of a “widespread conspiracy” by supporters of Mr Roberts-Smith who insisted Person 12 was not present on the mission so his evidence was dishonest.
He added this was despite video evidence of Person 12 alongside other members of the mission and Person 14’s evidence having been supported by “objective material” he did not know existed.
“It ultimately must come down to an honesty attack and nothing else … and that’s why we do say that all the independent corroboration he gets from objective material, and particularly material he couldn’t have known about, is powerful and important.
“It was to his credit, in the face of a vigorous attack, that he stayed firm and was vindicated,” Mr Owens told the appeal bench.
When asked if this meant his ultimate submission was Person 14’s credit was “enhanced” in light of the vigorous and “possibly wrongful” nature of the attack, Mr Owens said it at least “emphasised his honesty” and Justice Besanko’s credit finding.
“What you do get from it is a witness who, when he stuck to his guns under attack, was ultimately vindicated and powerfully so,” he said.
“It’s a big tick, it’s an underlining of a tick, next to his evidence.”
During the same submissions, Mr Owens relied on a file note Mr Roberts-Smith supplied to the court, which captured a conversation he had with Person 14 in a Canberra café prior to the trial.
According to the note, Person 14 was adamant he would not lie on the stand because “the truth is the only thing that would protect me”.
Person 14 was also recorded as having said Mr Roberts-Smith “did a lot of things in front of the young [soldiers] you shouldn’t have”.
Justice Anna Katzmann interrupted the submissions to ask Mr Owens how this file note had made it into evidence.
“Mr Roberts-Smith,” Mr Owens answered.
“Yes, I know that, but for what purpose?”
“I don’t know, but we were happy,” Mr Owens said in reply.
Mr Owens’ submissions have now been moved into closed court for national security reasons.
The hearing continues.
