‘You can’t handle the truth’: Ben Roberts-Smith witnesses react to the scrutiny

‘You can’t handle the truth’: Ben Roberts-Smith witnesses react to the scrutiny

By Harriet Alexander

Jack Nicholson as Colonel Jessup in the movie A Few Good Men.

In the climactic scene to the courtroom drama A Few Good Men, base commander Colonel Nathan Jessup, played by Jack Nicholson, flares at the suggestion that he should have to answer to a jumped-up lawyer who has never been outside the line yet has the temerity to cast moral aspersions on actions by the military in the national interest.

“You can’t handle the truth,” he tells his interrogator. “Son, we live in a world that has walls and those walls have to be guarded by men with guns … You don’t want the truth because deep down in places you don’t talk about at parties, you want me on that wall, you need me on that wall.”

As Ben Roberts-Smith’s witnesses took to the stand this week in the marathon defamation case he has brought against The Age, The Sydney Morning Herald and The Canberra Times, the fault lines between troops in the Special Air Service have emerged.

Ben Roberts-Smith outside the Federal Court in Sydney last month.Credit:James Alcock

The witnesses called by the newspapers varied in their opinions of Roberts-Smith personally, but disapproved of the actions he is alleged to have taken on the battlefield.

The witnesses called by Roberts-Smith to date are united in their loyalty to him and dismiss those who allege that he participated in unlawful killings as poor soldiers and liars.

So when ex-SAS soldier Person 35 was cross-examined on his evidence for Roberts-Smith, he bristled with the same irritation as Colonel Jessup that his former comrade was being scrutinised by lawyers and journalists from the sanctuary of Australia over actions he had taken in Afghanistan.

‘Rats and snitches’

An indication of Person 35’s view of the proceedings could be found in an Instagram meme that he “liked” on the morning of his second day giving evidence. It featured a woman who was wearing a tag that read “SAS whistleblowers”, her mouth smeared with a white substance and a grinning man labelled “Fairfax Media”, the name of the company that owned the newspapers when the articles were published. Beneath the picture were these words.

“When some f—wit in a suit starts questioning your integrity using his f—tard snake logic he learned getting his tonsils bruised by some lecturer’s spotty dick at their non-binary law school remember one thing, that this c— will be one of the first to be held down and drowned in a muddy puddle for his fancy jacket when society crumbles.

“If/when society crumbles, it will be thanks to him and people like him thinking we all live on f—ing Sesame Street and everyone adhering to their putrid way of thinking.”

Lawyer Nicholas Owens SC.Credit:Edwina Pickles

Under questioning by the barrister for the newspapers, Nicholas Owens, SC, Person 35 did not concede that the meme accurately reflected his views. But he agreed he was upset that Roberts-Smith was being scrutinised and thought it was destructive to question the conduct of individual soldiers who had served overseas. He also agreed that he had liked other Instagram posts that described the witnesses against Roberts-Smith as “rats” and “snitches”.

These people were liars, he told the court, though he admitted he was not present during the events that they described in their evidence. “I know my friend Ben, and I know he wouldn’t do that,” he said.

Owens: “And that is the point, is it not: you are prepared to say that things didn’t happen, not because of what you’ve seen or heard but because of the strength of your friendship with Mr Roberts-Smith?”

Person 35: “I can speak to the man’s character, yes, and I don’t believe he did that. I do not.”

An unexpected arrest

It was not the only drama to unfold in the Roberts-Smith trial this week. The first clue fell when Person 35’s barrister, who is also representing two other former SAS soldiers giving evidence for Roberts-Smith, was absent from court on Wednesday morning.

As Person 35’s evidence drifted into contentious territory, Justice Anthony Besanko called for a pause to the proceedings until it could be established that the witness was happy to continue without legal representation. He was, and the questioning resumed.

“I have chosen a side. But I’m here to tell the truth.”

Across town, the witness who had preceded Person 35 on the stand was waiting in the cells for his name to be called by the duty magistrate presiding over fresh custodies. After completing his evidence the previous day, he had been approached by detectives attached to the ongoing Federal investigation into war crimes, and their encounter culminated in the former soldier being charged with obstructing or resisting a Commonwealth official and harming a law officer. Person 35’s lawyer, Rob Ranken, had been seconded from his post in the rarified Federal Court to the hard pews of Sydney’s Central Local Court, alongside Legal Aid lawyers stacked with charge sheets for breached domestic violence orders and common assaults.

It was a sensational conclusion to that witness’s visit to Australia – he had flown in specially to testify for his friend – and a public relations setback to Roberts-Smith’s legal team at a time that their case should have been on the ascendancy. By custom, the newspapers should have reached the high watermark of their case when their defence witnesses concluded two weeks ago, and momentum should be swinging back to the plaintiff, Roberts-Smith. But events outside the courtroom have been a distraction.

‘Honour, code, loyalty’

A few days before the arrest of the witness, it had transpired that Kerry Stokes, chairman of media giant Seven West Media, was paying for the lawyers representing witnesses for Roberts-Smith, a Seven employee, not just in the defamation case, but in the war crimes inquiry too.

Seven West Media chairman Kerry Stokes.Credit:AAP

This gave rise to a new line of cross-examination about whether the witnesses were motivated to lie in the defamation case. Owens, for the newspapers, asked whether the continuation of Mr Stokes’s legal funding was dependent on them protecting Roberts-Smith at the defamation trial.

Both witnesses denied this and maintained they were telling the truth.

“I have chosen a side,” Person 35 said, “but I’m here to tell the truth.”

In Colonel Jessup’s fiery reaction to questioning, he adds to “truth” a few other qualities valued by the marines.

“We use words like honour, code, loyalty,” he says. “We use them as the backbone of a life spent defending something. You use them as a punchline.”

Justice Anthony Besanko has been given no reason to doubt the loyalty of any soldier who has testified in these proceedings. Honour and code are still under review.

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