An SAS witness who allegedly murdered an Afghan prisoner under orders from war veteran Ben Roberts-Smith has not been forced by the Federal Court to speak about the mission.
Justice Anthony Besanko on Wednesday said the elite soldier codenamed Person 66 was not required to give evidence about a 2012 mission in the Syahchow region where the alleged war crime occurred.
Nicholas Owens SC, representing the newspapers Mr Roberts-Smith is suing for defamation, then asked another two questions but both were successfully objected to under Justice Besanko’s ruling.
The questions pertained to whether Person 66 shot a person under control (PUC) and whether Mr Roberts-Smith directed him to do so.
After Person 66 refused to answer the questions, he was freed from his testimony.
Mr Roberts-Smith, 43, is suing The Age, The Sydney Morning Herald and The Canberra Times over reports claiming he committed war crimes and murders in Afghanistan between 2006 and 2012.
Australia’s most decorated living war hero denies all the claims against him, while the media outlets are defending them as true.
Person 66 first entered the witness box on Monday, but soon objected to giving evidence due to “self-incrimination” his lawyer described as being “of the gravest kind”.
The news outlets allege in court documents that the young trooper in 2012 was ordered to execute the unarmed Afghan prisoner by Mr Roberts-Smith, who is accused of “blooding the rookie”.
The phrase refers to a fresh soldier getting their first kill in action.
Mr Roberts-Smith earlier testified insurgents were shot within the rules of engagement during that mission, and flatly denied ordering Person 66 to shoot an Afghan prisoner.
On Tuesday, Mr Owens pressed for the evidence to be given, saying proving the incident alone could prove key to his case.
“It is … possible that I could win this case by only proving the murder at Syahchow.”
“It is an independent path home to victory.”
Person 66’s barrister Jack Tracey argued against his client speaking, saying he ran the risk of prosecution in the International Criminal Court and an unfair trial at home if charges were to eventuate.
He also presented documents to the court pertaining to Person 66’s mental ill-health.
“(The) effect of giving evidence in this proceeding would put his wellbeing and life at risk,” he said.
The only other SAS witness who objected to speaking about another alleged execution, even granted a certificate of immunity from Justice Anthony Besanko, was Person Four.
Mr Owens did not compel Person Four to speak about the alleged war crime he is said to have carried out, saying there were other witnesses to that event to create the “rich mosaic” Justice Besanko could make findings from.
But only the evidence from Person 66 would explain the circumstances of how those at Syahchow were killed in action, Mr Owens said.
The next witness to be called by the media outlets is another SAS soldier they say was bullied by Mr Roberts-Smith.
The trial continues.
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