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Ben Roberts-Smith has told how he had to choose whether he would save two comrades in battle or be killed himself, on the 11th anniversary of the action for which he won a Victoria Cross.

Mr Roberts-Smith, who is suing Nine newspapers for accusing him of war crimes, chose to expose himself to enemy gunfire and save his comrades. 

'The decision was could you go home and face their families if you didn't do anything and they were to get injured or killed,' he told his defamation trial in the Federal Court on Friday.

'Or do you go and potentially get injured or killed yourself. And as I have said previously, I’ve always tried to serve my country with honour.' 

He wiped away tears as he told the court of a moment when he had to shoot dead an Afghan boy who was operating a machine gun for the Taliban.  

'The second machine gunner was, at best, 15 years old,' Mr Roberts-Smith said.

Barrister Bruce McClintock SC asked his client, 'How did you feel about that - well, how do you feel about it now?'

Mr Roberts-Smith said: 'I struggled'.

Mr Roberts-Smith served six operational tours in Afghanistan with the elite Special Air Service and left the regular army in 2013 with the rank of corporal. He is pictured arriving at court on Friday

Barrister Bruce McClintock SC, noted it was the 11th anniversary of the action for which Mr Roberts-Smoth won a Victoria Cross

Ben Roberts-Smith pictured with his SAS regiment in Afghanistan where he was  awarded the Victoria Cross for his heroism in a battle in Tizak, Kandahar Province

Mr Roberts-Smith had been proud of being awarded the Victoria Cross that day for his actions but it had also made some colleagues jealous of him.

'It put a target on my back,' Mr Roberts-Smith told the court. 

The 42-year-old had been part of a troop within the Special Operations Task Group that was dropped by helicopter at Tizak in Kandahar Province to capture or kill a senior Taliban commander on June 11, 2010.

Immediately upon insertion, his troop was subjected to machinegun and rocket-propelled grenade attack from elevated and fortified enemy positions above the village.

'We got hit pretty hard,' Mr Roberts-Smith said  on Thursday as he described landing at the village in a Black Hawk and the area erupting in gunfire.

Under intense fire Mr Roberts-Smith got as close as he could to the enemy machine guns, killing an insurgent he encountered. He deliberately drew enemy fire until his patrol commander could throw a grenade and silence one of the machine guns.

The parents of Mr Roberts-Smith, Len and Sue Roberts-Smith have sat through the first week of the trial in the Federal Court, after claiming the allegations against their son ruined their lives. They are pictured walking into court on Friday morning

Mr Roberts-Smith was about to describe the moment he decided to rush another machine gun post when the giant warrior broke down in tears late in Thursday's evidence.

'You have to make a decision… ' he said before the hearing was adjourned.

Mr Roberts-Smith picked up that narrative on Friday morning after Mr McClintock SC, noted it was the 11th anniversary of the battle.

'The decision I made was that I... could live... or I could die knowing that I've done the right thing by them and their families, and my family could live without me knowing that I still had my hounor,' he said of acting to save his fellow soldiers.

Seizing an opportunity, Mr Roberts-Smith ran towards an enemy position and engaged a machine gunner. 'And he went down,' he told the court.

During his fifth tour of duty in Afghanistan, Mr Roberts-Smith (pictured) drew enemy fire away from pinned-down members of his patrol, stormed two enemy machine-gun posts and silenced them. He was awarded a Victoria Cross for his heroism. This picture was taken about an hour and a half after the battle

Mr Roberts-Smith then engaged another insurgent in what by the end of the battle would be a 14-hour firefight that would claim at least 76 enemy lives.

With a total disregard for his own safety Mr Roberts-Smith had taken out two machine gun positions, saved his fellow patrol members, then continued his assault on the compound.

The actions of Australian soldiers that day caused the remainder of the Taliban in the Shah Wali Kot district to retreat from the area.

'That kind of battle has not happened for Australian troops since Vietnam,' Mr Roberts-Smith said.

Mr McClintock asked his client what the Victoria Cross he received for this actions that day meant to him. 

'It's interesting because - people obviously ask you all the time, and I would say that of course I'm proud of it,' he said. 

'But I'm nowhere near as proud of that as I am able to count myself amongst that number of men on that day in that battle.

Ben Roberts-Smith's Victoria Cross made him the most famous soldier in Australia but also allegedly led to jealousy among some of his colleagues. The Queen is pictured shaking hands with him during an audience at Buckingham Palace in November 2011 

'Because everybody fought with the bravery, everybody fought with gallantry, and most people, at some point, were fighting for their lives.

'And as I have said and maintain and will maintain until the day I die, that Victoria Cross is for what we achieved, because you cannot go into battle alone.

'You simply can't do it. You have to do it together. That's what it means.' 

But for all the good the award had brought him, it had also been a cross to bear.

'Because for all of the good that is has brought me and has enabled me to do... it has also brought me a lot of misfortune and pain,' he told the court.

'As soon as you become a tall poppy that gives people the opportunity to belittle you and drag you down and undermine you, and use that award against you out of pure spite.'

On Thursday, Mr Roberts-Smith told the court his heart was broken when he was first publicly accused of battlefield crimes.

'I spent my life fighting for my country and I did everything I possibly could to ensure I did it with honour,' he told the court.

'I listened to that and I really cannot comprehend how people, on the basis of rumour and innuendo, can maintain that in a public forum. It breaks my heart actually.

Mr Roberts-Smith is pictured with the prosthetic leg of a fallen Afghani that was kept at the SAS base and used as a drinking vessel. His lawyer said that might seem in bad taste, 'but in the scheme of human wickedness it does not rate very high.' Mr Roberts-Smiths denies ever drinking from the leg

Mr Roberts-Smith was awarded the Victoria Cross for selfless actions in Afghanistan and is fighting for his reputation in the Federal Court, claiming his reputation was destroyed by media giant Nine Entertainment

Asked by Mr McClintock how it felt to be specifically accused of multiple murders, Mr Roberts-Smith said, 'It's devastating quite frankly.'

Mr Roberts-Smith is suing Nine-owned newspapers The Sydney Morning Herald and The Age, plus The Canberra Times over allegations he committed war crimes including murder. 

Mr Roberts-Smith served six operational tours in Afghanistan with the elite Special Air Service and left the regular army in 2013 with the rank of corporal. 

As well as the Victoria Cross he was awarded the Medal for Gallantry for his actions as a patrol scout and sniper near the Chora Pass in May 2006.

Mr Roberts-Smith has already given evidence about how he shot dead a man with a prosthetic leg during a mission at a compound codenamed Whiskey 108 at Kakarak in southern Afghanistan on April 12, 2009.

Nine published claims Mr Roberts-Smith carried the man outside the compound, threw him on the ground and shot him 10 to 15 times with a machine gun.

Mr Roberts-Smith said he had shot the man, who was armed with a bolt-action rifle, with a two-round burst when he was already outside the compound.

He said if the man had been shot 10 to 15 times his injuries would have been far more substantial than what was shown in photographs and he could not possibly have carried him when he was already wielding a machine gun.

Mr Roberts-Smith is pictured with his new girlfriend Sarah Matulin attending the Magic Millions races together on the Queensland Gold Coast in January this year

Former governor-general Dame Quentin Bryce pinned Mr Roberts-Smith's Victoria Cross to his chest (pictured) and was expected to give character evidence for him. She has said she will not be attending for personal reasons but has never withdrawn her support for the former soldier

Mr Roberts-Smith also denied another claim that a soldier known as Person 5 had ordered a trooper known as Person 4 to execute another unarmed insurgent by forcing him to kneel and shooting him in the back of the head.

Nine alleges that killing was an act of 'blooding' and Mr Roberts-Smith had done nothing to stop it. 'I say it's completely ridiculous,' Mr Roberts-Smith said.

Mr Roberts-Smith told the court no such shooting took place but a second insurgent had been legitimately killed during the action.

He said the first time he had heard the term 'blooding' was several years ago when it was being 'bandied around' about the time Nine newspapers were making allegations of war crimes.

Asked how he felt about being accused of not intervening when a captured Afghani was executed he said: 'It makes me angry is how I feel.'

Mr Roberts-Smith  has taken leave as general manager of Seven West Media's Queensland operations for the duration of the hearing. His is pictured in London in 2012, the year before he left the army  

Mr Roberts Smith said he did not have a problem with other SAS soldiers drinking from the prosthetic leg of an Afghan insurgent he had shot dead in battle.  The leg is pictured

Mr Roberts-Smith said the man he did kill at Kakarak was never in his custody and had not seemed to be hampered by his prosthetic leg.

After the battle his colleague Person 6, another soldier, said he would be taking the limb as a trophy.

 'He said he just wanted to take it back,' Mr Roberts-Smith told the court. 'I said, ''Why? Why don't we just leave it?' Basically he just told me to f*** off.' 

The leg was turned into a drinking vessel and kept at the SAS bar in Tarin Kowt called the Fat Lady's Arms.

Mr Roberts Smith said he did not have a problem with other SAS soldiers drinking from the war trophy but had not done so himself.

'Look, I didn't have a feeling one way or another about it,' he told the court. 'My view was we are out there doing a job you cannot explain to people.

'I don't have a problem with it. I think it's just a way that people decompress.'

Many of Mr Roberts-Smith's SAS colleagues were pictured drinking from the leg in the Fat Lady's Arms but he was not one of them

Earlier, Nicholas Owens SC had made a brief opening statement on behalf of the newspapers.

Mr Owens said Nine would call 21 serving and former SAS soldiers to give evidence against their former comrade.

He said none of the six murders Nine alleged Mr Roberts-Smith committed were the result of decisions made in the heat of battle or under 'the fog of war'.

'None of those six murders involve judgement calls,' he told the court. None of the killings came about due to confusion over whether someone was an insurgent or civilian.

Mr Owens said each of the alleged murders involved the killing of Afghans in custody and were breaches of the Geneva Conventions which govern the laws of conduct during war.

Most of those allegedly shot dead were 'almost certainly insurgents' and they were killed because they were thought to be Taliban. 

Mr Owens told Justice Anthony Besanko he would be presented with a 'stark choice'. Either prisoners had been executed by Mr Roberts-Smith, or they had died in battlefield encounters.

Mr Roberts-Smith had created 'false narratives' about the deaths of the six Afghanis and his version of events could not be reconciled with those of other soldiers.

Written battlefield accounts which Mr Roberts-Smith's lawyers say support his versions of killings contained deliberate lies to cover up murders, according to Nine.

Mr Owens said he would call the 21 serving and former SAS soldiers who would give evidence conflicting with what Mr Roberts-Smith would tell the court.

Some of those soldiers would themselves admit to war crimes including taking part in murders and were 'honourable men who could remain silent no longer'.

'I'm feeling good mate, looking forward to finally setting the record straight,' Mr Roberts-Smith told Daily Mail Australia ahead of the hearing

Australian special forces soldiers are pictured boarded a Chinook helicopter at the airfield at their base in Tarin Kowt

Mr Roberts-Smith said Tuesday was the first time he had heard anyone accuse him in person of killing prisoners. 'I've only ever read it in the paper, because no one has ever said it to my face,' he said.

'But I heard it today and... it makes me feel very, very disappointed because the reality for me is that is so far from the truth it's not funny. 

'My life has been about fighting for my country and fighting honourably, and I have to listen to that be said about me - and have done for three years - with no one checking anyone on it. It's ridiculous.' 

In his lawsuit, Mr Roberts-Smith alleges the newspapers and journalists Nick McKenzie, Chris Masters and David Wroe defamed him in what was then the Fairfax press in 2018.

Among his claims is that the publications wrongly made out that he 'broke the moral and legal rules of military engagement and is therefore a criminal.'

Mr Roberts-Smith says the newspapers falsely implied his alleged conduct had disgraced his country and the army.

Nine Entertainment Co, the media giant which now owns the Herald and Age, is defending their journalists' claims on the basis the allegations are true. 

Mr Roberts-Smith's ex-wife Emma has 'flipped' and is giving evidence for Nine Entertainment. The former couple is pictured together at a reception to celebrate military and civilian heroes in London in 2012

The newspapers will plead that Mr Roberts-Smith was complicit in and responsible for the murders of six people in Afghanistan, and that those alleged actions constituted war crimes. 

Mr Roberts-Smith is the first witness of an expected 60 to be called at what is estimated to be a ten-week trial. 

Mr McClintock said the effect of those stories had been to 'smash and destroy' Mr Roberts-Smith's previously exalted reputation. 

'In 2018 when this material was published there could not have been a former soldier better known or more highly respected than my client,' Mr McClintock told the court. 

Mr Roberts-Smith would be seeking aggravated damages because according to Mr McClintock, the publisher knew some of their claims to be false. 

The stories had been presented in a 'sensational' manner, included 'unjustifiable allegations of murder' and had not been withdrawn.

Whereas Mr Roberts-Smith was once much in demand as a speaker, after the stories were published even invitations to Anzac Day ceremonies stopped.   

Mr Roberts-Smith has taken leave as boss of the Seven Network's Queensland operations for the duration of the hearing. His case is being bankrolled by Seven's owner, billionaire Kerry Stokes (pictured with wife Christine) 

Nine executive editor of Australian metro publishing James Chessell (left) and editor of The Sydney Morning Herald, Lisa Davies (right) arrive at the court on Monday

Mr McClintock told the court on Monday his client had been the victim of jealous former comrades who falsely accused him of committing war crimes.

'This is a case about courage, devotion to duty, self-sacrifice and perhaps most important of all, surpassing skill in soldiering,' Mr McClintock told Justice Anthony Besanko.

'On the other hand, your Honour, it's a case about dishonest journalism, corrosive jealousy, cowardice and lies. 

'It's also about how a man with a deservedly high reputation for courage, skill and decency... had that reputation destroyed by bitter people jealous of his courage and success as a solider, particularly his Victoria Cross, aided by credulous journalists.' 

Australia's most decorated soldier Ben Roberts-Smith is suing three newspapers and three journalists he says destroyed his reputation as a war hero. Mr Roberts-Smith is pictured on Wednesday arriving at the Federal Court

Mr McClintock argued Mr Roberts-Smith and his comrades-in-arms were sent to kill in Afghanistan and their Taliban insurgent enemy did not wear uniforms. Decisions  in the heat of battle had to be made without the benefit of hindsight.

'Perspective is everything,' he told the court. 'Battle is not like a computer wargame where, when you restart the game, you get your lives back - your five lives. There's only one life in this game.' 

Mr McClintock said the former soldiers who made claims against Mr Roberts-Smith had not spoken up until years after the events they now complained about.

He suggested some of their claims were made out of jealousy over Mr Roberts-Smith's medals for gallantry and their own failures as soldiers. 

Mr McClintock said one false allegation Mr Roberts-Smith murdered an Afghani, which was recently withdrawn by Nine, should lead to aggravated damages.

Ben Roberts-Smith will spend the next two months in room 18D at the Law Courts Building in the central business district defending himself against claims he is a war criminal

In his lawsuit, Mr Roberts-Smith alleges Nine's newspapers and its journalists Nick McKenzie (pictured), David Wroe and Chris Masters defamed him in the then Fairfax press in 2018

Mr McClintock said the jealousy towards his client escalated after he was awarded the Victoria Cross, when he became famous outside military circles.

The court heard that on Mr Roberts-Smith's last deployment to Afghanistan in 2012 he would find messages such as 'BRS is after another medal' on a noticeboard at the Australians' headquarters.

Mr McClintock said by 2012 the workload Mr Roberts-Smith endured was 'almost inhumane' but he coped better with repeated deployments than many of his colleagues.

After Mr Roberts-Smith left the army, completed a MBA and had business success, the 'poisonous campaign' of envy against him increased.

'Some might call it the tall poppy syndrome,' Mr McClintock said. 'Others might just call it jealousy.' 

Mr Roberts-Smith is also suing his ex-wife Emma Roberts, claiming she broke into his email account. She is pictured outside her Brisbane home on Friday 

After Mr Roberts-Smith gives evidence he will face what is likely to be a week of cross-examination by lawyers for Nine. 

Character witnesses will then testify on his behalf, followed by witnesses for Nine.

Mr Robert-Smith's ex-wife Emma Roberts, the mother of his two children, is expected to give evidence for the publisher after 'flipping' sides. 

Ms Roberts' friend Danielle Scott, John McLeod - a former bodyguard of drug smuggler Schapelle Corby - alleged Afghani eye-witnesses and a handful of soldiers will also be called by Nine in the main trial. 

Then Mr Roberts-Smith's team will call evidence from his other witnesses, understood to include former SAS comrades. 

How Ben Roberts-Smith won his VC 

Ben Roberts-Smith (pictured) joined the Army in 1996 and completed the Special Air Service selection course in 2003. He completed six tours of Afghanistan (2006-2012) 

Barrister Bruce  McClintock read this summary of Ben Roberts-Smith's military service up to the battle in which he was awarded the Victoria Cross: 

'Corporal Benjamin Roberts-Smith enlisted in the Australian Regular Army in 1996. After completing the requisite courses, he was posted to the 3rd Battalion Royal Australian Regiment, where he saw active service in East Timor. 

In January 2003, he successfully completed the Australian Special Air Service Regiment selection course. During his tenure with the regiment, he deployed on Operation Valiant, Slate, Slipper, Catalyst, and Slipper 2. Corporal Benjamin Roberts-Smith was awarded the Medal for Gallantry for his actions in Afghanistan in 2006.

On 11 June 2010, a troop of the Special Operations Task Group conducted a helicopter assault in Tizak, Kandahar Province, in order to capture or kill a senior Taliban commander. Immediately upon the helicopter insertion, the troop was engaged by machine gun and rocket-propelled grenade fire from multiple dominating positions. Two soldiers were wounded in action and the troop was pinned down by fire from three machine guns in an elevated, fortified position to the south of the village.

Under the cover of close air support, suppressive small arms and machine gun fire, Corporal Roberts-Smith and his patrol manoeuvred to within 70m of the enemy position in order to neutralise the enemy machine gun positions and regain the initiative. Upon commencement of the assault, the patrol drew very heavy, intense, effective and sustained fire from the enemy position. Corporal Roberts-Smith and his patrol members fought towards the enemy position until, at a range of 40m, the weight of fire prevented further movement forward.

At this point, he identified the opportunity to exploit some cover provided by a small structure. As he approached the structure, Corporal Roberts-Smith identified an insurgent grenadier in the throws of engaging his patrol. Corporal Roberts-Smith instinctively engaged the insurgent at point-blank range, resulting in the death of the insurgent. 

With the members of his patrol still pinned down by the three machine gun positions, he exposed his own position in order to draw fire away from his patrol, which enabled them to bring fire against the enemy. His actions enabled his patrol commander to throw a grenade and silence one of the machine guns.

Seizing the advantage and demonstrating extreme devotion to duty and the most conspicuous gallantry, Corporal Roberts-Smith, with a total disregard for his own safety, stormed the enemy position, killing the two remaining machine gunners. His act of valour enabled his patrol to break into the enemy position and to lift the weight of fire from the remainder of the troop, who had been pinned down by the machine gun. 

On seizing the fortified gun position, Corporal Roberts-Smith then took the initiative again and continued to assault enemy position in depth, during which he and another patrol member engaged and killed further enemy. His acts of selfless valour directly enabled his troop to go on and clear the village of Tizak of Taliban. This decisive engagement subsequently caused the remainder of the Taliban in the Shah Wali Kot district to retreat from the area.

Corporal Roberts-Smith's most conspicuous gallantry in a circumstance of extreme peril was instrumental to the seizure of the initiative and the success of the troop against a numerically superior enemy force. His valour was an inspiration for the soldiers with whom he fought alongside and is in keeping with the finest traditions of the Australian Army and the Australian Defence Force.'

 

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