In a trial that has been shot through with military jargon and acronyms too numerous to recall, the arrival of the word “liminal” into the lexicon of the court was certainly memorable.
Ben Roberts-Smith arriving at his defamation trial this week.Credit:Louise Kennerley
Person 38, the eighth witness to be called by war veteran Ben Roberts-Smith in his defamation action against Nine newspapers, identified a “liminal memory” as the type that stands out. He first used it in association with the detonators that Roberts-Smith was carrying when he first saw him at a village compound known as Whiskey 108, which he remembered because they were valuable to the Taliban. He later used it to explain why he remembered the route that he took between village compounds.
“[We] cleared so many compounds, we had so many contacts, that a lot of what you’re asking is not memorable,” he expounded to the newspapers’ barrister, Nicholas Owens, SC, when asked to describe what he meant by the term.
“A memorable event is someone showing a lack of courage or me thinking when we got to the aqueduct, ‘Am I going to get my explosive device wet moving through the aqueduct?’
“Finding a tunnel was a clear memory. If I’m correct in my definition of ‘liminal’ they’re important [memories]… They’re different. They’re not just another day in the office.”
The word “liminal” is more commonly used to refer to the ambiguous, transitional phase between two states of being, but Person 38’s differentiation between memory types is pertinent. The soldiers giving evidence have been asked to pull recollections from the blur of dozens of operations more than a decade ago. Which makes it all the more bizarre that the two groups of soldiers can be so certain about entirely different versions of events.
Take the alleged murder of two Afghan prisoners at Whiskey 108, which moved to the fore again in the twelfth week of this trial. One fact is uncontroversial. On April 12, 2009, Australian soldiers unearthed a tunnel in the courtyard of a village compound known as Whiskey 108 in southern Afghanistan.
The group that gave evidence about Whiskey 108 for the newspapers – five soldiers in total – are clear that one or more Afghans emerged from the tunnel. Three of those soldiers said they witnessed Roberts-Smith or another soldier shoot them dead while they were in the custody of Australian troops, which is considered murder under the rules of engagement.
But some witnesses for Roberts-Smith, who were also present when the tunnel was identified, are equally adamant that there was nobody in the tunnel and the only Afghans killed were enemy combatants outside the compound. And they go further than being unable to remember whether any fighting-age males were detained: they have a positive recollection that no such prisoners existed.
Owens, for the newspapers, says the only logical explanation for the discrepancy between the two accounts of what happened at Whiskey 108 is that one group of soldiers is lying. And if that is the case, it follows that they are doing so in collusion.
Several of Roberts-Smith’s witnesses have denied under cross-examination that they discussed their stories before coming to court. One soldier, Person 29, was sent a marked-up image of Whiskey 108 by Roberts-Smith nine days before he submitted his outline of evidence to the court. Owens asked: “I want to put to you again, when you had a conversation with Mr Roberts-Smith about this document, it was for the purpose of aligning your stories about Whiskey 108 in key respects, do you agree?” Person 29 did not agree.
The soldier, Person 38, was a softly spoken friend of Roberts-Smith, and the only one of his non-commissioned military witnesses to date who has not been questioned as part of the Inspector-General’s investigation into suspected war crimes. He was discharged from the Special Air Services in 2017 because, he said, the birth of his first child had prompted him to reassess his priorities in life.
He said none of the newspapers’ witnesses were present in the courtyard when the tunnel was discovered and raised for the first time in court a version of events in which he was clearing an orchard with one of those witnesses a short time later when an execution was alleged to have taken place. That witness, Person 41, told the court in February that he saw Roberts-Smith “frog-marching” one of the men pulled from the tunnel outside the compound, throwing him to the ground and shooting him in the back.
But Person 38 said he had a liminal memory of clearing the orchard with Person 41, because he had initially asked Person 40 – another of the media witnesses – to help him, and Person 40 had declined due to “cowardice”.
Owens challenged the assertion that none of the newspaper witnesses were present when the tunnel was discovered, suggesting that Person 38 had fabricated his evidence to place only Robert-Smith’s closest friends on the scene at the crucial moment. Person 38 denied this was so.
Owens: “The entire account of clearing an orchard with Person 41 is nothing more than an attempt to remove an important witness from a position where he was able to observe what happened at Whiskey 108, correct?”
Person 38: “Incorrect.”
Owens: “And I want to put to you that it’s an example of having what you call liminal memories that only assist Mr Roberts-Smith, correct?”
Person 38: “That is incorrect.”
The other vein of Person 38’s story, that Person 40’s conduct was memorable for its cowardice, is emerging as a theme among Roberts-Smith’s military witnesses. Some of the witnesses who gave evidence against Roberts-Smith have been described as “poor” and “below standard”, offering an interesting glimpse into the dynamic within the Special Air Services.
Roberts-Smith is alleged to have threatened to put a bullet in the back of the head of a soldier who has admitted to making a mistake in battle. A soldier, Person 36, did not initially accept when questioned about that comment on Thursday that it was unacceptable to make a death threat against another soldier.
“To be honest, early in my training career there were things said in debriefs that I could perceive to be death threats,” Person 36 said. “So I guess it depends on the individual and how they perceive that feedback.”
Person 38 agreed under cross-examination that a lack of courage was the most insulting thing that could be said about an SAS soldier. “It doesn’t change the fact though,” he said.
The word liminality was coined by the French-Dutch ethnographer Arnold van Gennep in 1909 to describe the intermediate stage in a rite of passage, when an initiate has departed their old life but not yet entered the new. It may not be apparent to a person that they are experiencing a liminal event at the time it occurs. It could easily refer to the drizzling afternoon in Afghanistan back in 2009 when SAS soldiers came across the entrance to a tunnel.
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