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Ben Roberts-Smith case: ‘cruel’ soldiers planted radio on alleged murder victim to frame him, court hears

·5-min read
<span>Photograph: Mick Tsikas/AAP</span>
Photograph: Mick Tsikas/AAP

“Cruel” Australian soldiers planted a radio and a bag on the body of alleged murder victim Ali Jan to incriminate him during an SAS raid in southern Afghanistan in 2012, a relative of the dead man has told Ben Roberts-Smith’s defamation trial.

The raid on Darwan has become a central argument in Roberts-Smith’s defamation action against three newspapers who accuse him of committing a murder in the village, alleging he kicked an unarmed, handcuffed Ali Jan off a low cliff before ordering him shot.

Roberts-Smith denies the allegation and says the death of the man purported to be Ali Jan was lawful: he was an insurgent “spotter” detected in a cornfield with a radio and was killed within the rules of engagement.

On Thursday, Darwan villager Man Gul told the federal court he was arrested and interrogated alongside Ali Jan and his nephew Mohammed Hanifa Fatih.

He told the court he last saw Ali Jan alive handcuffed, alongside Hanifa, facing the cliff that dropped down to the dry creek bed that separates Darwan village from its fields and orchards. Man Gul was moved away from the other two men.

After the raid concluded, and a woman in his village released his handcuffs, Gul said he found Hanifa.

“I ask from Mohammed Hanifa, where is Ali Jan? He said ‘they kicked him and he went down in the river and they dragged him’.”

Gul said he walked down a dirt path to the riverbed “and I saw some blood”.

Related: Ben Roberts-Smith: Afghan witness defends evidence of ‘big soldier’ kicking uncle as court releases photos

He said he was joined by Hanifa and his sister and together they walked across the riverbed to a cornfield where they discovered Ali Jan’s body.

Gul told the court Ali Jan was lying on his back: “One hand was under his body and one hand was a little bit extended.”

He said Ali Jan’s body had gunshot wounds to the right side of his jaw, the left side of his skull and in his chest.

“We cleaned his face. There was a lot of dirt on his face,” Gul said. “And we brought him under the shade of the berry tree and then put a shawl over his body.”

Gul was shown photographs of Ali Jan’s body. In one, the body was lying beside a radio transmitter and a white bag.

“Did you see Ali Jan on that day carrying a radio like that?” Nicholas Owens, SC, for the newspapers, asked Gul.

“No,” he replied. “He doesn’t know how to work a watch. He cannot operate a wireless device.

“This wireless device and then the white bag were not there, only there were the clothes on his body.”

The court has heard previously about the alleged practice of coalition forces using “throw-downs”, a piece of compromising equipment, such as a radio or weapon, carried by soldiers and placed on the bodies of victims as a post-facto justification for their killing.

Roberts-Smith has told the court he never engaged in, nor saw, the practice among Australian troops.

Gul said while detained he was violently interrogated by the Australian soldiers, including being hit in the head with a pistol.

Gul said he was asked repeatedly where the Taliban were, and in particular, the whereabouts of Hekmatullah, a rogue Afghan national army soldier who had killed three Australians a fortnight earlier. Gul told the Australians he didn’t know.

Gul said he had never supported the Taliban, but also that he resented foreign troops in Afghanistan: “You were cruel to us and the Taliban were cruel to us,” he told the Australian troops, through their interpreter, during the raid.

He told the federal court on Thursday foreign troops “killed innocent people, they martyred them and beat them”. He said that he regarded Ali Jan as a martyr “because he was innocent”.

“You hate them, don’t you, the foreign soldiers?” McClintock asked.

“Yes, it is like that,” Gul replied.

“And in fact you agree with the aims of the Taliban, to rid Afghanistan of the infidels, don’t you?”

“I do not agree with the Taliban, the Taliban have done injustices to us and the foreigners have also done injustices to us,” Gul replied.

Related: Ben Roberts-Smith: first Afghan witness tells court he saw ‘a big soldier’ kick his uncle off a cliff

Earlier this week, Hanifa told the court he saw “a big soldier” with a wet, sandy uniform kick Ali Jan, causing the handcuffed man to fall down a steep embankment into a dry creek bed.

“He was rolling down, rolling down until he reached the river,” Hanifa told the court. Hanifa said he lost sight of Ali Jan as he rolled down the embankment, but later heard gunshots, and saw Ali Jan’s body being dragged by two soldiers.

Earlier witnesses in the trial have described Roberts-Smith as “a tall, imposing, warrior-like figure”. The court has also heard, from Roberts-Smith himself, that earlier in the raid, he had swum, alone, across the nearby Helmand River to pursue and kill a suspected insurgent.

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.

The hearing continues but is likely to face further delays because of difficulties in bringing witnesses to Sydney during its extended Covid-19 lockdown.

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