A few years ago, former SAS soldier Henry Jones shared intimate details with a podcaster about an army career that took him from a dead-end job to the elite ranks of the Australian army.
But even though Mr Jones spent almost two years fighting in Afghanistan in the famous unit, including in a team led by Ben Roberts-Smith, he shared almost no details about Australia’s longest war.
In hindsight, Mr Jones’ caution wasn’t surprising. Federal prosecutors in Mr Roberts-Smith’s murder case allege Mr Jones executed a prisoner in the village of Syahchow in southern Afghanistan on his first deployment to the country in 2012.
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Court documents, which refer to him as Person 66, indicate Mr Jones has agreed to testify against his former corporal in return for immunity from prosecution.
Three other low-level soldiers accused of murder have taken the same deal from the Federal Director of Public Prosecutions, a controversial approach that raises difficult questions about how justice is applied to different people accused of taking part in the same crimes.
“If there is such a strong case against Corporal Roberts-Smith, how can it be necessary to indemnify not just one but four people who must themselves have been allegedly involved in as serious a criminal offence as murder?” said Margaret Cunneen, a former NSW crown prosecutor. “Who decides which one of the five faces all the music, and why?”
A child is shot
In the podcast, Mr Jones did reveal something about his war experience. Despite years of intense training, he said he wasn’t prepared for seeing civilian casualties in the war.
He described giving first aid to a child about 10 shot in the chest by an Afghan soldier working with the SAS. The boy’s father watched, emotionless, an experience he hadn’t been able to shake off almost a decade later.
On October 20, 2012, Mr Jones went with his platoon, known in the SAS as a troop, to a settlement about 100km from their base called Syahchow. Mr Jones was one of five members of a team led by Mr Roberts-Smith.
The Australians moved two male prisoners to the edge of a cornfield, according to prosecutors. Mr Jones heard a gun fire. He looked down and saw one of the men had been shot by the member of another team, the court documents allege.
Mr Roberts-Smith allegedly removed the second prisoner’s handcuffs and blindfold and ordered Mr Jones to shoot him.
Mr Jones, from a range of 2m, “paused for a moment and then shot PUC 1 (person under control) two to three times in the chest, killing him,” the prosecution asserts. “Person 66 has admitted their role in this incident.”
A lawyer for Mr Jones, a pseudonym, declined to comment. Mr Jones did not respond to a message sent to a social media account.
SAS corporal Ben Roberts-Smith and three members of his team, Gothic 2, in Afghanistan in 2012. US Black Hawk and Apache helicopters fly overhead. Credit: Ben Roberts-Smith
On Reality TV
Of the dozens of veterans involved in the long-running allegations over war crimes, Mr Jones is unusual. Instead of keeping a low profile, he has turned his SAS experience into a public career.
Offering himself as a business coach, he appeared on two seasons of a reality television show, operates an Instagram page with more than 1000 followers and promotes himself on LinkedIn.
He established a veterans’ foundation that operates under the umbrella of special forces charity associated with former prime minister Tony Abbott.
The parent charity helped produce a documentary that argues SAS soldiers were abandoned by the army and unfairly treated by the media over war crimes allegations that surfaced in 2016.
Even though he has admitted to murder, according to the Director of Public Prosecutions, Mr Jones’ identity has been suppressed by the Federal Court under the National Security Information Act. His name is well-known among SAS veterans who fought in Afghanistan.
First combat
Unless the court lifts the order, which was reaffirmed on Thursday after The Nightly sought clarification about its status, all four of Mr Roberts-Smith’s accusers from within the regiment may be able to maintain their anonymity throughout the trial and afterwards even though they may have executed prisoners.
Mr Jones is an attractive prosecution witness. One of the youngest soldiers in the unit, he had never killed a person when he arrived in Syahchow. The prosecution will likely use his testimony to argue a practice of “blooding” new SAS arrivals emerged in Afghanistan, led by non-commissioned officers.
The term’s meaning changed over time. Initially it was a reference to a soldier’s first combat experience.
Prosecutors allege it became a way to describe the murder of prisoners at the direction of superiors. Some SAS soldiers ordered new team members to kill as leverage to secure their loyalty, investigators claim.
Mr Roberts-Smith said he did not use the term in Afghanistan. “I hadn’t heard that phrase until a few years ago, when it was being bandied around,” he told a court in 2021.
In a 24-page document setting out the prosecution’s case, a whole section discusses “blooding” and accuses Mr Roberts-Smith of describing the killing of a prisoner in 2009 as “blooding the rookie”.
Even though Mr Roberts-Smith held the low rank of corporal, and three of the five alleged murders were carried out by other soldiers, the prosecution says Mr Roberts-Smith is responsible because they acted on his orders.
Under international law, receiving an order to shoot a prisoner is not a valid defence against a murder charge. Australian soldiers sent to Afghanistan were briefed by army lawyers they were not allowed to execute prisoners or civilians.
Laws of evidence
But in 2024, four years after the investigation into Mr Roberts-Smith and other SAS soldiers began, the Australian Federal Police’s commander of special investigations published an internal document emphasising that “superior orders” are a legitimate excuse for committing war crimes.
The legal defence could help prosecutors portray Mr Jones and the other accusers as innocent of murder, even though they admitted killing prisoners, according to the government.
In allocating blame for the person Mr Jones allegedly shot — the dead person’s name isn’t recorded in the filings — the Government is likely to emphasise the power imbalance between him and Mr Roberts-Smith.
Mr Jones was a 26-year-old private (called a trooper in the SAS) who had never gone to university and worked as a labourer before joining the army.
The son of a judge, Mr Roberts-Smith was then 33 and had already won the Medal for Gallantry and the Victoria Cross, the highest-ranked bravery decoration in the Commonwealth.
Experts not involved in the case expect Mr Roberts-Smith’s lawyers to cite the laws of evidence, which state that any witness “reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding” might be considered untrustworthy.
“That type of witness is often seen as someone who might be unreliable because they are involved in the surrounding events,” said Professor Gary Edmond, a University of NSW professor and co-author of an evidentiary law textbook.
“Often they will be seen as downplaying their role.”
Captain Hastie
Of the 39 prisoners and civilians former NSW judge Paul Brereton said Australian soldiers killed in Afghanistan, the Syahchow incident is notable for a celebrity witness: Andrew Hastie, the Liberal MP and industry spokesman.
At the time Mr Hastie was an SAS platoon commander and captain. He did not see the two men shot at Syahchow, but testified against Mr Roberts-Smith in a defamation lawsuit in 2022.
Hearing a message over a radio that shots had been fired, Mr Hastie said he asked Mr Roberts-Smith what happened. “Just a couple more dead c…s,” he said the corporal replied.
Mr Hastie said Mr Jones appeared nervous afterwards. Mr Roberts-Smith denied ordering Mr Jones to shoot a prisoner.
In Mr Roberts-Smith’s defamation lawsuit against Nine, the Syahchow incident was a rare win for the veteran — the media company withdrew the allegation he was responsible for executions because of a lack of evidence.
Mr Hastie’s office did not respond when asked if the MP had been asked to give evidence in the murder case, or if he would do so.
Anecdotal evidence suggests there is public support for Mr Roberts-Smith that could turn on Mr Hastie if he helps the prosecution unless new charges or evidence changes perceptions of the case.
On Monday, when Mr Roberts-Smith arrived at a police station to fulfil his bail conditions followed by television cameras, a bystander yelled out: “Good on ya Ben.” One supporter who dined with Mr Roberts-Smith at a Canberra restaurant several months ago said strangers approached Mr Roberts-Smith and asked to be photographed with him.
The next test of the veteran’s popularity may come on Saturday, when Mr Roberts-Smith could attend an Anzac Day ceremony on the Gold Coast, where he lives.
Victoria Cross awardees are usually sought-after speakers on the day, which commemorates Australians and New Zealanders who died in war.
After he was first accused by Nine Entertainment Co’s newspapers of war crimes in 2018, Mr Roberts-Smith was shunned by charities and veterans groups. The RSL on Thursday said he “is able to attend Anzac Day commemorations should he so choose”.
The prosecution has said it will seek the maximum penalty, a life term, for each of the five counts of war crime — murder.
The trial is expected in about two years, but may take longer if Mr Roberts-Smith’s lawyers ask for it to be cancelled on the grounds the publicity has made a fair trial impossible.
