The text was not sent by Mr Hanifa but by a person Mr Moses described as a “middle man” or “agent” for the newspapers in Afghanistan,who communicated with the media outlets’ lawyers.
“It affects the assessment of Mohammed Hanifa’s credibility,” Mr Moses said.
Mr Roberts-Smith’s barrister,Bruce McClintock,SC,put it to Mr Hanifa in cross-examination last week that he had discussed with the Afghan Independent Human Rights Commission the possibility of compensation for the death of a relative called Ali Jan,and that Mr Hanifa knew authorities would not pay for the deaths of Taliban fighters.
“No,I do not know who the human rights people are and also I haven’t talked to them,” he said,adding that Mr Jan was not a Taliban fighter.
Mr Hanifa had told the court that he had witnessed a “big soldier” kick Mr Jan,his step-uncle,off a cliff in the village of Darwan into a dry creek bed. He subsequently heard shots being fired,he said,but did not see who fired the shots.
Mr Moses alleged the WhatsApp message suggested Mr Hanifa had previously said he had spoken to a human rights commission director about compensation for the death of Mr Jan.
Loading
The newspapers’ barrister,Nicholas Owens,SC,said the messages were hearsay,meaning they were not texts sent by Mr Hanifa himself,and would need to fit within an exception to a general prohibition on hearsay evidence. Justice Besanko has yet to make a ruling on the messages.
Earlier on Monday,Mr Owens tendered photographs shown to the Afghan witnesses during questioning. He pointed out that Mr McClintock had suggested on Friday to one elderly witness,Shahzada Aka,that the distance between a particular hut and a compound was 250 to 300 metres and he would have had difficulty seeing alleged events at that distance because of his admitted poor eyesight.
“In fact,that distance is only 100 metres,a fact that emerges from the document,” Mr Owens said.
He said Mr McClintock had alleged another distance was one kilometre,but it was “about 400 metres”.
Mr Moses said,“I won’t engage with my friend’s submissions now on that issue,but ... there’s no objection to that material being admitted.”
Mr Roberts-Smith is suingThe Age and The Sydney Morning Heraldfor defamation over a series of reports in 2018 alleging he was involved in unlawful killings during missions in Afghanistan.
He has denied all wrongdoing and insisted he only killed suspected Taliban insurgents during the heat of battle. The news publications are seeking to rely on a defence of truth.
The Morning Edition newsletter is our guide to the day’s most important and interesting stories,analysis and insights.Sign up here.