“None – not a single one – of the six murders that we allege Mr Roberts-Smith both dedicated or was concerned in, concerned choices that have been made within the warmth of battle” Owens asserted.
As a substitute, he mentioned, six Afghani males – on separate events over quite a few totally different missions – died by the hands of Roberts-Smith or together with his blessing in conditions the place they have been both already a prisoner or rendered incapable of fight.
Below these circumstances, Owens went on, they need to have been entitled to safety below the Geneva Conventions even when any certainly one of them may have been “with out a shadow of a doubt essentially the most brutal, vile member of the Taliban possible”.
However requested later by McClintock if he thought it was acceptable to kill unarmed folks below the management of Australian troops, Roberts-Smith replied: “Completely not.” He mentioned each time he heard or learn that allegation he couldn’t consider it and it felt like he was “in a bloody nightmare”.
There’s extra at stake on this trial than contested occasions on the battlefields of Australia’s longest and messiest struggle.
The allegations the mastheads have levelled towards Roberts-Smith additionally embody claims of bullying of fellow troopers, and a separate declare of an act of home violence towards a former lover (who can be identified solely as Particular person 17 in the course of the trial).
However on the very coronary heart of the case can be whether or not Roberts-Smith will stroll away perpetually labelled a assassin, or whether or not the Victoria Cross-winner will retrieve his place within the pantheon of the nation’s best struggle heroes.
Ben Roberts-Smith with the SAS in Uruzgan province, Afghanistan.
Credit score:Australian Defence Power
A lot will activate whether or not McClintock can persuade Justice Besanko, presiding over proceedings in room 18D of the Federal Courtroom constructing in Sydney, that the six deaths have been official below the military’s secret guidelines of engagement on the time. In an setting the place insurgents didn’t put on uniforms, the place any seemingly-harmless civilian or farmer may grow to be a combatant, “perspective is every thing” McClintock argued this week.
Even an act so simple as a person placing a hand in his pocket, which could presage activation of an explosive gadget or suicide vest, “may enliven the foundations of engagement and entitle a soldier observing that motion to make use of deadly pressure”.
“Implementing the foundations of engagement … is a matter of impression distinctive to the individual making the choice” McClintock added.
Owens is prone to argue that that is an excessively liberal interpretation of what the foundations of engagement enable, even for the elite SAS of which Roberts-Smith was a component.
A lot can even come right down to the credit score and recollections of the army witnesses lined up by either side, who can be identified solely by numerical pseudonyms to guard their identities. Owens revealed this week that the media shops are planning to name as many as 21 former and present particular forces troopers to again the newspapers’ case.
These witnesses, Owens says, don’t have any motive to lie. Many haven’t spoken to one another about what they noticed in Afghanistan. They have been in a variety of various patrols. Some have been troops on their first rotation, others have been seasoned commanders. “Conspiracy between them is, we are going to submit, merely unattainable” Owens advised the court docket on Thursday.
In contrast, he pointed to what he noticed as suspicious conduct between Roberts-Smith and the latter’s former comrades.
In 2016, two years earlier than the media shops broke their tales regarding the extremely embellished ex-soldier, the Inspector-Common of the Australian Defence Power had already launched into a extremely confidential exterior inquiry into allegations of struggle crimes dedicated by Australian troops, a probe which later grew to become referred to as the Brereton inquiry.
Owens mentioned his proof would present that when that inquiry started interviewing a few of Roberts-Smith’s associates the previous soldier bought two “burner” telephones so he may communicate to mates with out worry of being tapped.
Owens went on: “A number of months later, days after his personal first interview with the Inspector-Common, Mr Roberts-Smith organized for 2 additional burner cellphone numbers to be bought for him. Subpoenaed materials from the phone corporations will show a exceptional sample of spikes within the utilization of these cellphone numbers round vital occasions, resembling Mr Roberts-Smith’s first interview with the Inspector-Common”.
McClintock has but to guide Roberts-Smith by this facet of the case however he has already flagged how he’ll search to shoot holes in 9’s defences. He’ll spotlight, within the first occasion, the size of time that has elapsed for the reason that contested occasions, the earliest of which passed off in 2006. The primary of the contested killings passed off on Easter Sunday, 2009, in a compound designated Whisky 108 by the Australian troops conducting operations there.
Had been recollections cast below the stress of struggle so way back prone to be dependable particularly since official studies on the time recorded no misconduct, McClintock requested?
Consuming from a prosthetic leg was ‘gallows humour’, a solution to ‘decompress’ and ‘let go of a number of the demons that they cope with’.
Ben Roberts-Smith’s proof
Maybe, he urged, these accusing his shopper of misdeeds may have been “confused, mistaken, or have false recollections due to the trauma of the missions – the a number of missions – in a struggle zone over a interval of years”.
His second line of assault will relaxation on the motivations of those that 9 – the present proprietor of The Age and the Herald – will search to name to the witness stand. McClintock argues that lots of these witnesses are motivated by jealousy, or in different circumstances resentment as a result of he uncovered their weaknesses on the battlefield.
The soldier recognized as Particular person 1, as an illustration, had left his 6-man patrol, together with Roberts-Smith, critically uncovered excessive on a ridge-line throughout a battle within the Chora move as a result of he had forgotten to carry gun oil to lubricate the group’s solely machine gun. On one other event, that soldier had been extra targeted on making ready his lunchtime noodles than on obeying an order to maneuver his automobile to a extra protected place, McClintock mentioned.
Roberts-Smith advised the court docket that being awarded the Victoria Cross for valour in battle in 2011 had been an honour however had additionally “put a goal on my again” and introduced him “a whole lot of misfortune and ache”. McClintock will proceed pursuing this line forcefully .
“My shopper was an distinctive soldier: extremely organised; disciplined; a pacesetter; resourceful; and exceptionally courageous” he mentioned.
However “what is obvious is that, by 2014, quite a few troopers had developed monumental jealousy of my shopper related primarily with awards he obtained. They resented these awards and above all of the Victoria Cross”.
Owens nonetheless says it defies credibility that the boys 9 will name to the stand, a few of whom have been allegedly concerned in crimes themselves, are all motivated by envy.
“Is it actually to be supposed… to take essentially the most excessive instance, {that a} man would himself confess to homicide simply in order to provide vent to some jealousy a couple of medal?” Owens requested.
Roberts-Smith was visibly overcome within the witness field on Thursday as McClintock led him step-by-step by his actions in the course of the heavily-fought battle of Tizak in 2010, the battle which delivered the previous soldier the VC. It was a momentary crack within the in any other case supremely assured façade he’d offered all week, striding up the courtroom steps every morning in a crisp white shirt and sharply tailor-made go well with, sneakers shone to a excessive brilliance.
It was not the one theatre the week supplied. The previous soldier’s private life additionally got here into the highlight, each within the courts, and within the media. Journalists masking the case have been galvanised on Wednesday by developments in a unique court-room, a flooring above the Roberts-Smith trial, the place one other decide, Justice Robert Bromwich, was presiding over a associated case involving Roberts-Smith’s former spouse, Emma Roberts.
Ms Roberts was initially going to be a witness for her husband however just lately determined to provide proof for 9.
Her resolution to again the media firm’s case prompted her ex-husband’s authorized workforce to launch an eleventh-hour authorized strike alleging she’d had entry to an e-mail account he’d used to speak together with his legal professionals. They sought pressing orders from Justice Bromwich searching for the handover of any such materials on the grounds of a possible breach of authorized skilled privilege.
It was whereas interrogating the idea for these orders on Wednesday morning that the decide surprised all people by elevating the query of whether or not the ex-soldier had had a private relationship with a member of his authorized workforce, solicitor Monica Allen, his honour saying he’d seen studies to that impact within the media, and that he ought to have been alerted to the problem.
Satirically the best way this curveball entered the case was by way of a soft-focus piece on Roberts Smith which had appeared in final Sunday’s Every day Mail, showcasing photographs of the tattoo-ed struggle hero limbering up for his court docket case with a exercise close to a set of well-known steps in harbourside Woolloomooloo.
One in every of Ben Roberts-Smith’s authorized workforce, Monica Allen.Credit score:Janie Barrett
That prompted a short merchandise within the Australian Monetary Evaluate the following morning, suggesting that after the coaching session, Roberts-Smith had taken a path to the condominium block the place Allen usually resided.
The AFR piece recalled for a lot of an merchandise a yr earlier in Information Corp’s Brisbane Courier Mail which had revealed photos of Allen and Roberts-Smith holding arms in public – an encounter Allens’s boss, Mark O’Brien later characterised as proof of a purely social friendship between the pair, which was in all probability “unwise’“.
On Wednesday afternoon Roberts-Smith’s legal professionals rushed again into court docket to emphatically state there was “no relationship” between Allen and the previous soldier and that 9 (proprietor of the AFR) had been occasion to a “deplorable slur” as a part of an assault on his legal professionals.
9 strenuously denied any such suggestion.
Roberts-Smith was additionally questioned this week in regards to the provenance of a prosthetic leg souvenired from battle, which ended up as a consuming vessel for SAS troops at their bar again on the Tarin Kowt base, strikingly named the Fats Girl’s Arms.
Ben Roberts-Smith and pal with a novelty consuming vessel created from the prosthetic leg of an Afghan man.
Roberts-Smith acknowledges capturing the person however says he did so in battle. He didn’t memento the leg himself, nor ever drink from it. However he didn’t condemn those that did. It was “gallows humour”, a solution to “decompress” after coming back from conditions the place “you anticipate that you could be get killed at any second”, he mentioned. It was “nearly folks having the ability to let go of a number of the demons that they cope with”.
With weeks of this trial but to run, it’s unattainable to gauge at this early stage which aspect has the higher hand. One factor is for certain already, although. Because the trial continues, the Australian public can be getting a really totally different image of the lengthy, untidy struggle in Afghanistan than that curated by Defence’s public relations division over time.
