An Afghan man who says he saw a “big soldier” from Australia kick his handcuffed uncle off a cliff has defended his evidence under intense cross-examination during Ben Roberts-Smith’s defamation trial.
Mohammed Hanifa Fatih’s evidence came as newly declassified defence documents showed in detail for the first time the village of Darwan, where the alleged murder of a farmer named Ali Jan reportedly occurred.
Roberts-Smith has been accused in newspaper reports of kicking an unarmed, handcuffed Ali Jan off a low cliff during the September 2012 raid on Darwan, before ordering the badly injured man shot. A Victoria Cross recipient, Roberts-Smith has consistently denied the allegation, and is suing the newspapers for defamation.
Hanifa, giving evidence by videolink from Kabul for the second straight day, had previously told the court he and his uncle, Ali Jan, were detained together by Australian troops, during an SAS raid on the village of Darwan on 11 September 2012.
Hanifa told the court he saw “a big soldier” with a wet, sandy uniform kick Ali Jan in the chest, causing the handcuffed man to fall down a steep embankment into a dry creek bed. He later heard gunshots being fired, and saw Ali Jan’s body being dragged by two soldiers “to the berry trees” on the other side.
Facing cross-examination by Roberts-Smith’s barrister Bruce McClintock on Tuesday, Hanifa was repeatedly challenged about his evidence, but resolutely, at times passionately, defended his account.
“Your evidence is not true is it?,” McClintock said at one stage.
“I’m explaining what I saw with my own eyes,” Hanifa replied. “Whether you call it a lie or a truth, I leave it to the respected judge.”
McClintock: “The evidence you’ve given about seeing the ‘big soldier’ wet is completely untrue isn’t it?”
Hanifa: “Whether you call it a lie, that’s up to you. But I have seen this person with my own eyes.”
McClintock: “It’s also a lie to say there was sand on his uniform.”
Hanifa: “[There was] sand from the river. If you call it a lie that’s up to you. Sand from the river.”
McClintock suggested Australian troops had repeatedly raided Darwan because it was a known “Taliban stronghold”, and also probed Hanifa’s disposition towards the Australian soldiers: “You hate the soldiers don’t you, because they are infidels?,” he asked.
Hanifa replied: “if they are coming to our houses, go[ing] inside our houses to where our women are, of course that’s what we call them: infidels.”
McClintock: “You hate them don’t you?
Hanifa: “No, I don’t like them.”
Photographs of village released
Declassified defence force pictures released by the federal court Tuesday show the single-storey mud-built compounds of the village of Darwan, built on a steep embankment above a dry creek bed.
The geography of Darwan has been contested during the trial. Roberts-Smith has maintained he could not have killed Ali Jan as alleged because there was no cliff from which to kick him. “There was no cliff … there was no kick,” he told the court.
One photo released was marked by Roberts-Smith when he gave evidence several weeks ago.
He told the court Australian soldiers entered the village on the raid from the north (the right of the picture).
In his evidence, Roberts-Smith said that all other Australian patrols stopped at the point marked A, and only his patrol proceeded south (left) of that point.
Roberts-Smith said point B marked a roof structure in Darwan where his patrol waited for 10 minutes after clearing the village before they got a radio call for extraction by helicopter.
He said he then walked, with his patrol members, down a path to the dry creek bed – a route marked by the black line.
The dotted line marked his patrol’s route across to the other side of the creek bed and up to the fields opposite.
At the end of the dotted line is where Roberts-Smith says his patrol encountered, engaged, and lawfully killed a “spotter” for the insurgency, purported to be Ali Jan, whose body was allegedly found with a radio.
Point C is the point from which the Australian soldiers were extracted by helicopter.
One report describes killing a man “taking direct part in hostile activity… by reporting on FE movements” and possibly moving to a weapons cache. “The manner in which he manoeuvred (deliberate rapid movement followed by ignoring clear and repeated warnings from the FE) was consistent with the application of insurgent tactics, techniques and procedures,” it reads. The man was shot and killed and a radio was recovered from his body, according to the report.
Roberts-Smith is suing the Age, the Sydney Morning Herald and the Canberra Times for defamation over a series of reports published in 2018 that he alleges are defamatory because they portray him as someone who “broke the moral and legal rules of military engagement” and committed war crimes, including murder.
The 42-year-old has consistently denied the allegations, saying they are “false”, “baseless” and “completely without any foundation in truth”. The newspapers are defending their reporting as true.
On Tuesday afternoon, the trial went into a closed court session, hearing evidence sensitive to national security. Evidence from Afghanistan is expected to continue Wednesday.