Nine has dropped a claim Australian SAS soldier Ben Roberts-Smith murdered an Afghan man in 2012 as it prepares its final defence in a landmark defamation trial.
Mr Roberts-Smith is suing Nine’s mastheads — The Sydney Morning Herald, The Age and the Canberra Times — and three of its journalists, over the publication of a series of articles in 2018 alleging he “broke the moral and legal rules of military engagement” while on deployment in Afghanistan.
But less than two weeks before the defamation proceeding begins, Nine has dropped one element of its wider ‘truth’ defence.
That defence, which was previously tendered to court, related to the alleged “execution of an unarmed Afghan”.
The media company had claimed Mr Roberts-Smith crossed the Helmand River in search of the “unarmed man” he believed was fleeing as Australian forces approached the area, before shooting him dead at close range.
Nine’s lawyers have now written to Mr Roberts-Smith’s team to state it would be dropping that element of its defence, with a spokesperson saying the four paragraphs related to the defence were “not necessary”.
But the company is seeking to prove other unlawful killings.
During a previous hearing in the Federal Court in 2019, counsel for Mr Roberts-Smith, Bruce McClintok QC said the sum of the allegations were “extraordinarily grave”.
He raised the example of the man who was shot dead near the Helmand River, stating he was not “unarmed” as Nine was set to claim, but was equipped with detonators and an AK-47.
“My client took off his body armour and his pack and with only his weapon and a medical kit, swam across the river onto the land to the rocks, killing him,” he said.
“On him, he had an AK-47… he also had detonators which were significant because they had never seen that kind of detonator in Afghanistan before, presumably foreign made.
“My client took the body down the river so it could be photographed.
“He’s accused of killing an unarmed man. So far as being unarmed, my client put on display the AK-47 in the patrol room at Tarinkot…”
The killing was not raised in the original articles published by Nine’s newspapers but was set to form part of its defence.
It is also separate from another allegation first raised in the media articles over the killing of Afghan civilian Ali Jan.
Nine’s newspapers claimed Ali Jan was handcuffed and kicked off a cliff by Mr Roberts-Smith before being shot dead by another soldier.
The hearing is set down to begin on June 7.