Australia Roberts-Smith under fire in the witness box

23:15  25 june  2021
23:15  25 june  2021 Source:   smh.com.au

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Ben Roberts-Smith © Getty Ben Roberts-Smith

There were surely moments this week when Ben Roberts-Smith would rather have been back in the badlands of Afghanistan than face another hour's hammering from Nicholas Owens SC.

The barrister for The Age and The Sydney Morning Herald has had the former SAS patrol leader under relentless cross-examination for seven days, mostly in open court but at times, for national security reasons, in closed court as well.

Closed sessions are barred to the media; smartphones and smartwatches are banned and no electronic devices are permitted except for those supplied by the Defence department, allowing Owens to delve deep into hundreds of classified photos, videos, charts and other documents under the watchful eye of Commonwealth officials.

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Building his case through the week, the media outlets' barrister has accused Roberts-Smith of repeated falsehoods and of colluding with his own witnesses while being willing to threaten or intimidate those lined up to give evidence against him.

He's accused the Victoria Cross recipient of trying to stop unfavourable evidence coming to light, including through the wiping of extensive files on a laptop. He's put to Roberts-Smith that he murdered or participated in the murder of up to six unarmed prisoners and fabricated evidence they were engaged in combat.

He's even questioned Roberts-Smith's feats in combat during the battle of Chora in 2006 in which the highly decorated soldier won his first medal for gallantry, suggesting he's changed his story about the battle several times. And, in a searing session on Friday morning, Owens led Roberts-Smith through excruciating testimony about the breakup of his marriage, and the clandestine extramarital affair he conducted with a woman dubbed person 17.

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Among Owens' claims, denied by Roberts-Smith, is that he threatened his then-wife Emma with loss of access to their children if she didn't play along with his story that they were separated at the time of the affair.

In the face of this onslaught Roberts-Smith has rarely blinked, outwardly at least. The former soldier has denied all allegations with the exception of possessing classified images, where he conceded he'd done the "wrong thing".

Yet the sheer volume of material amassed by the media outlets' defence team this week must be giving his own side pause for thought.

The trial has been triggered by the mastheads' allegations that Roberts-Smith was party to or committed several unlawful killings of Afghan males, that he bullied a fellow soldier and that he punched Person 17 after she embarrassed him at a formal dinner in Canberra. The former soldier denies these allegations.

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The credit of witnesses and of Roberts-Smith himself will be critical in this judge-only trial.

Owens has therefore paid close attention to the pattern of interactions Roberts-Smith has had with former colleagues who will be called to give evidence later in the proceedings. As former or serving special forces members, these men will only ever be known to the public as numbers, their faces never shown in open court.

Owens claims Roberts-Smith "workshopped" his version of key contested events in Afghanistan with four of these witnesses , whom he described as the former soldier's "crew", identifying them as Persons 5, 11, 29 and 35. Roberts-Smith accepted the four were his "close personal friends" and his key military witnesses.

He accepted he'd communicated with them via prepaid SIM cards and "burner" phones purchased under the name of his wife's friend, Danielle Scott, and Scott's husband.

He acknowledged he'd ensured the phones were loaded with the encrypted apps in early July 2018, shortly after the first media stories broke.

But Roberts-Smith denied this was because the burner phones were to be used in aligning the group's evidence for the trial. Nor, he insisted, were contacts between the five of them intended to thwart investigations by the Inspector-General of the Defence Force, who was also conducting a top-secret probe into wrong-doing by soldiers in Afghanistan at the time.

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Instead, Roberts-Smith argues, the burner phones were intended to protect him from having his calls tapped or intercepted by the media.

Owens says records subpoenaed from the relevant telecommunications companies show clear "spikes" in contacts between the former soldier and members of the group around the time of key events, such as before and after interviews with the Inspector-General, which they weren't meant to discuss or disclose.

He pointed to another "spike" in the burner phones' traffic around October 2018, when Roberts-Smith flew to Canberra to meet a witness called Person 14 in a café. Owens alleges Person 14 warned Roberts-Smith he was going to tell "the truth" about events in Afghanistan, and that this panicked the former soldier.

Owens drilled at length into communications with Person 5 who is likely to be a crucial witness later in the trial.

Person 5 was Roberts-Smith's patrol commander during the SAS' sweep of a compound designated Whisky 108 in 2009, a mission during which the media outlets allege Roberts-Smith machine-gunned a man with a prosthetic leg who'd already been placed "under control" by the SAS and thus should have been entitled to protection. Roberts-Smith testified the man was armed and that he engaged him outside the compound, killing him lawfully.

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Owens put to Roberts-Smith that Person 5 had sent him a document detailing the contents of a compulsory interview Person 5 had undergone with the Inspector-General, including a grilling about the actions of Roberts-Smith himself.

But the Victoria Cross winner insisted the letter was simply one of "complaint" by Person 5 who was wanting to "vent" about the interview.

Owens pressed him to acknowledge that he knew Person 5 should not have been discussing the Inspector-General's line of questioning but Roberts-Smith demurred.

Owens went on: "Your evidence on this topic is nothing but an attempt to avoid acceptance of the obvious proposition that by reason of receiving this letter, you learnt an awful lot of information about the subject matter of the Inspector-General's inquiry?"

"I disagree," Roberts-Smith replied.

Other questions from Owens went to meetings Roberts-Smith had held with Person 11, who is implicated with him in an allegation that the pair kicked an unarmed and handcuffed farmer off a cliff near the village of Darwan in 2012 and then executed him. Again Roberts-Smith has strongly denied this.

The decorated veteran accepted he had flown to Perth to see Person 11 shortly after the media allegations were aired, and just before Person 11's second interview with the Inspector-General, but he says this was because he was concerned about Person 11's welfare at the time.

Late the following year, in 2019, Roberts-Smith underwent his own interrogation by the Inspector-General.

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At that point, Owens alleged, the soldier flew "around the world" to check in with his "crew", meeting Person 35 in New Zealand, Person 5 in the United States, Person 11 in Perth , again, and Person 29 at his home.

Roberts-Smith denied the purpose of the trips was to help align stories, saying the meetings had occurred while he was on holidays with his family, or in the case of Person 29's visit, because the latter was godfather to one of his children.

Owens put to him that "throughout this case, you have engaged in a deliberate course of conduct that was designed to conceal evidence of collusion between you and your key witnesses". Roberts -Smith replied forcefully, "I say that is untrue".

The former soldier has also had to defend his handling of several USB sticks containing thousands of images of SAS activities in Afghanistan, which he says were sent to him anonymously from late 2019 onwards.

Owens accuses the former soldier of burying the USB sticks in a lunch box in his backyard (which he denies) and refusing to reveal their existence until a 60 Minutes program broadcast in April publicly revealed their existence and forced his hand.

Roberts-Smith claims he hadn't fully understood that as part of the legal discovery process he was required to retain the USBs in their original form. Instead, he transferred the images onto his computer, then onto a different USB stick, scrubbing his laptop afterwards using a "zero wiping" process which meant nothing could ever be retrieved from it. He says this was because he wanted to trade the device in.

But Owens put to him that it was part of a "deliberate course of conduct designed to conceal … evidence that you considered did not assist your case". This, too, Roberts-Smith denies. He admitted destroying three previous laptops in 2010, 2012 and 2018 by pouring petrol on them and burning them.

The decorated war hero also came under pressure during the week to explain episodes that Owens claimed were examples of "intimidation" of witnesses expected to be hostile to him.

He didn't deny recruiting a private investigator, John McLeod, who passed on information supplied by Roberts-Smith concerning one such witness, known as Person 6. Roberts-Smith told McLeod that Person 6 had smuggled unregistered weapons in to Afghanistan and later kept an unregistered firearm in his home.

The allegations became the subject of emails to then AFP commissioner Andrew Colvin, Senator Nick Xenophon and to a journalist at The Australian, triggering a raid on Person 6's home which found nothing.

Roberts-Smith denies the emails were his doing and says he'd simply told McLeod it was "fine" if the tip about Person 6 was passed on to McLeod's "contacts" in the AFP.

Owens produced a text message Roberts-Smith had sent to then-wife, Emma, which read "what happened to Person 6 will scare the others". But the former soldier Roberts-Smith denied seeking to intimidate anyone.

Owens also sought to probe why another military witness perceived as hostile to Roberts-Smith, Person 18, had received threatening letters. Roberts-Smith has denied writing or sending the missives.

The former soldier's barrister, Bruce McClintock SC, will seek to re-examine Roberts-Smith on some of these issues next week. But the planned course of the trial now faces major disruption, owing to border barriers thrown up by other states in response to Sydney's COVID outbreak, impacting the willingness of interstate witnesses to travel.

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