6 Apr 2022

Case against Australian SAS soldier collapsed after NZ witnesses denied jury protections

1:23 pm on 6 April 2022

This story discusses graphic details of previously alleged military crimes in combat

Australia's only prosecution of an elite SAS soldier for crimes in combat collapsed because key witnesses were refused "standard" identity protections, the New Zealand military has revealed.

Australian soldiers armed with machineguns man a security post near the Nicolau Lobato international airport in Dili, 26 October 2006.

File image: Australian soldiers armed with machineguns man a security post near the Nicolau Lobato international airport in Dili, East Timor, 26 October 2006. Photo: AFP

The NZ Defence Force has told ABC programme Four Corners it was "not an unusual requirement" for Kiwi SAS witnesses to have their identities shielded, and it "cannot confirm the details of why" this was rejected in the 2003 case.

The decision robbed defence prosecutors of their only eyewitnesses. As a result, the Australian soldier accused of brutalising corpses in East Timor in 1999 was found not guilty.

Secret documents obtained by Four Corners show the New Zealand SAS repeatedly raised concerns about their Australian comrades in East Timor, which was the last time they fought together.

While the Australian military court records remain suppressed, Four Corners has learned a defence magistrate ruled the New Zealanders should be named in proceedings out of fairness to the soldier, whom Four Corners has called Operator K.

Following this ruling, the NZ SAS witnesses did not take the stand.

The NZDF said in a statement "protection of the identity of members of the NZDF NZSAS is a fundamental aspect of the operational capability".

The conditions of anonymity outlined by the NZDF were the same as those granted to Australian SAS witnesses in the defamation trial involving Victoria Cross recipient Ben Roberts-Smith.

"We believe that our requirement was our standard procedures for ID protection, i.e. that NZSAS personnel would only be known by names such as 'Trooper B'," the NZDF said.

"It would also be common practice to have NZSAS witnesses screened in court, and prevent their names from being used or published.

"Their actual names would be provided to the court and defence on paper.  

"This is not an unusual requirement.

"We cannot confirm the details of why the ID protection measures were not met in this case."  

Australia's new war crimes agency, the Office of the Special Investigator, is likely to seek the same protections for witnesses in any future prosecutions of Australian special forces accused of unlawfully killing 39 people in Afghanistan.

Military police told Four Corners that what allegedly happened in East Timor and the collapse of the case against Operator K was the beginning of a culture of impunity in the Australian SAS that led to alleged war crimes in Afghanistan.

Operator K was originally investigated for the alleged murder of militia after an ambush that left two SAS soldiers wounded near the city of Suai on October 6, 1999.

The Australian Federal Police warned the Australian Defence Force in 2001 the "political impact of this investigation has been assessed as substantial and needs to be managed".

The evidence did not support a murder prosecution. Instead, Operator K was charged in 2003 with mistreating corpses.

In statements obtained by Four Corners, NZSAS members gave accounts of a screaming Operator K who "lost it" and repeatedly kicked and punched the two dead militia in front of shocked comrades in Suai.

Four Corners has established that the case collapsed because of a ruling by Australian Defence Force magistrate David Gunson at a pre-trial hearing.

In line with an arrangement with NZDF, the prosecutor applied for an order to shield the identities of the Kiwi SAS witnesses.

Operator K's lawyers objected, and Colonel Gunson came down in their favour.

Operator K went to trial with no evidence against him and was found not guilty.

The Chief of Army apologised to Operator K, and a Senate inquiry found the investigation was "based on gossip, 'secretly conducted' and incompetently executed".

It also strained relations with special forces across the Tasman.

An SAS member stands ready at the opening event of the service's new training facility in Papakura, Auckland, on 8 April 2016.

File image: An SAS member stands ready at the opening event of the service's new training facility in Papakura, Auckland, on 8 April 2016. Photo: POOL / NZME

'Bad blood'

East Timor proved to be the last major combat mission where the NZSAS teamed up with their Australian comrades.

There was a joint security operation shortly after East Timor at the Sydney Olympics in 2000.

By then, the Kiwi SAS response to what they witnessed in Suai had "created bad blood" with the Australian SAS, according to David Fisher, an investigative journalist in New Zealand.

"I've talked to NZSAS personnel who felt that friction at the Sydney Olympics, they felt that tension," he said.

"I talked to one guy in particular who said he had been told that they had betrayed the Anzac spirit." 

Secret documents obtained by Four Corners show in 2001, senior members of the New Zealand SAS and the British Special Boat Service (SBS) revealed to military investigators they had raised the concerns they raised about Operator K with the Australian SAS in East Timor.

A New Zealand SAS officer told investigators he tried to have the Australians remove the "loose cannon" Operator K from frontline operations.

"However, nothing appeared to be done about it."

He said he became concerned about the "cowboy" attitude of Australian SAS who treated East Timor "like Vietnam", and he directed his soldiers to avoid being "tarred with the same brush".

The documents also show that members of the British Special Boat Service were alarmed by a "dangerous" order from Operator K after the ambush in Suai, which prompted an Australian SAS officer to step in and overrule him.

Operator K allegedly directed soldiers to shoot anything that moved outside their camp, including all dogs in the area.

"This concerned me as we had clearing patrols out in the area and this would be dangerous," SBS soldier AC told military police.

Fisher said the legacy of East Timor was "deeply damaging to the relationship between New Zealand and Australian special forces" in the years that followed.

"It's significant to me that when it came to deploying to Afghanistan, there was no Anzac team-up," he said.

"We went our own way [which] basically meant that we had a bunch of guys that fetched up in the middle of nowhere in Afghanistan with no transport, no helicopters, no nothing.

"Pretty light on logistics and exactly the sort of situation where you would turn to your Anzac brother and say, why don't we work together?"

The New Zealand Defence Force confirmed that "NZSAS did not conduct any joint operation in Afghanistan with Australian SAS".

However, it said relations between the special forces played no part in this.

"Each country was allocated separate tasks and separate Area of Operations," it said.

"There was never an operational reason to combine for either Special Operations Forces organisation.

"We have a strong relationship with Australian Special Operations Command and regularly and consistently conduct bilateral training and engagement, working together towards the security of our region."

Operator K did not respond to an interview request from Four Corners or answer written questions.

The ADF declined an interview and did not directly answer questions.

In a statement, it said the investigation was "comprehensive and involved extensive investigation in Australia and abroad".

"The individual was found not guilty of all charges on 9 August 2003."


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