Secret documents have revealed the eyewitness accounts of New Zealand special forces soldiers who accused an Australian SAS operator of brutalising the corpses of two militiamen in the aftermath of a fierce firefight in East Timor in 1999.
The case was investigated as murder after the Australian Federal Police (AFP) agreed with military investigators that the wounded men may have been shot at close range in an act of revenge.
One New Zealander recounted how he had been told that one of the militiamen got up to try to flee, when the soldier Four Corners has called "Operator K" "'arced' him up", or shot him.
In an investigation airing tonight, Four Corners has obtained 11 NZ SAS witness statements that were never heard in court, in which some say Operator K "lost it" after the battle and punched and kicked the bodies.
The incident prompted a New Zealand SAS officer to warn his soldiers against emulating the "cowboy" approach of the Australians, who ignored his suggestion to sideline the "loose cannon" Operator K.
The firefight
The firefight was sparked by a pro-Indonesia militia ambush outside Suai near the West Timor border on 6 October 1999 during an operation by the Australian and New Zealand SAS and members of the British Special Boat Service.
The forces, known as INTERFET, were there to stop the violence unleashed in the wake of the Timorese vote for independence from Indonesia.
Concerned by militia activity in and around Suai, INTERFET's commander, Australian Major General Peter Cosgrove, sent in the special forces to clear them out.
After detaining some suspected militia and flying them to the capital Dili, the Australian SAS put about 100 of the rest in a convoy and began escorting them to the West Timor border.
Just outside Suai the convoy came under fire from the side of the road.
Two SAS soldiers were wounded in the ambush, the first serious Australian combat casualties since the Vietnam War.
In response, the Australians returned fire, killing the two militiamen.
'They're our rounds, just shooting the bodies'
The killings and their aftermath were the focus of a two-and-a-half-year special inquiry by the Royal Australian Corps of Military Police (RACMP).
The NZ SAS witness statements have never been publicly released.
Four Corners has obtained the statements and spoken to more than 100 people with knowledge of the incident and its aftermath.
One New Zealand SAS operator, code-named "Soldier U" by military police investigators, said he thought the firefight was over and then heard gunshots.
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"I heard a number of shots. Each time I heard one I went to ground. This happened about two or three times."
One of his comrades believed the shots were being fired into the corpses of the two militiamen after the firefight - which would be illegal.
"I heard someone call out, 'They're our rounds, just shooting the bodies,' or words to that effect."
A New Zealand SAS officer code-named "Soldier X" said he was later told that Operator K "put a few extra rounds into the bodies that were already dead".
But another Kiwi SAS soldier told investigators that after the ambush, an Australian comrade raised an even more shocking allegation.
"He then went on to say how [Operator K] was trying to claim the kills from the ambush site. He further went on to tell me how when the two bodies were recovered, one of them was not dead and it got up and started to run away when [Operator K] 'arced' him up."
After the ambush, the two bodies were loaded on top of an Australian Light Armoured Vehicle (LAV) and taken into Suai.
The New Zealanders, among them Soldier U, say they then witnessed more disturbing scenes.
"On our return to Suai … I can also recall seeing [Operator K] standing on top of this LAV towards the rear. I heard [Operator K] scream, 'How dare you shoot my boys,' or words to that effect. He was also kicking and punching the bodies as he said this. At this time I was about 10-15 [metres] away from the LAV and I thought to myself, 'F**k, he's lost it.' … He then kicked one of the bodies off of the back of the LAV."
Three other NZ SAS members, including "Soldier T", saw at least one of the bodies kicked off the vehicle.
"I saw [Operator K] standing on the rear of this vehicle. I heard him scream, 'That's for hurting my lads,' or words to that effect. I can also recall him kicking the bodies as he said this. He then kicked one of the bodies off the LAV and I assisted in lifting the other one down. … I was shocked by what I just witnessed."
"Soldier P" gave an account of seeing one of the bodies kicked again once it was on the ground.
"I also heard the distinctive voice of [Operator K] saying, 'Got you, ya f***ers,' or words to that effect. I heard [Operator K's] voice emanating from the direction of where I could see a body lying on the ground … several minutes later I looked towards the direction of the body again only to see approximately two persons standing in the vicinity of the body while another kicked it one or two times."
Soldier T also stated that he was concerned that both bodies had been shot through the throat "as it was near impossible to have two separate wounds on each body to the throat in similar positions."
Australian 'cowboys'
In the aftermath of the Suai ambush, New Zealand SAS officer Soldier X told the RACMP investigators that Operator K was a "loose cannon and often unprofessional in the way he was conducting himself whilst on operations".
He said the approach of the Australians prompted him to remind his troops of the mission in East Timor.
"I became concerned with the attitude of the SASR [Australian SAS] and there seemed to be a general perception that this was a shooting war, like Vietnam, and not a peacekeeping mission. I would describe their attitude as being 'Cowboys'. As a result of this I told my soldiers … that this was a Peacekeeping Mission and not a war. This was to ensure that at no time could we, the 'NZ Contingent' … be tarred with the same brush, [that is] 'Cowboys'."
Soldier X said he talked about this with the officer in charge of the British Special Boat Service detachment and raised "our concerns regarding [Operator K]" with the Australian SAS operations officer.
He suggested Operator K be taken off frontline operations and sent back to headquarters in Dili.
"However, nothing appeared to be done about it," Soldier X said.
AFP deemed murder investigation 'prudent'
In the months after the ambush, rumours continued to spread among Australian soldiers about the deaths of the two militiamen.
An internal AFP report obtained by Four Corners reveals the agency was brought in to advise the Defence Force "ostensibly due to concerns the killings may have constituted an offence of murder".
Four Corners has also obtained the confidential AFP review from May 2001, which says the rumours "suggested the killings were an act of revenge for the wounding of the two Australian soldiers".
The review notes that Australian military intelligence staff who saw the bodies in Dili hours after the killings believed at least one was shot in the head at close range "due to singed hair around the neat entry wound".
The AFP stated there was evidence suggesting someone "may have shot both men at short range with a 9mm pistol after they had been wounded".
The AFP said it was "prudent" for the ADF to run a murder investigation, even if "other offences … may later be identified to be more appropriate after consideration of all the facts".
"The political impact of this investigation has been assessed as substantial and has to be managed."
The military police were also aware of the political sensitivities, stating in response to the AFP review: "Termination of this investigation is not considered to be a sound option."
"The allegations are known and if Defence is to avoid counter-allegations of cover-up, all allegations … should be thoroughly investigated prior to any closure."
As part of the investigation, the militiamen's bodies were exhumed, and a forensic pathologist performed autopsies to try to determine how they were killed.
'I believe what they were telling us'
Former military police sergeant Karl Fehlauer is speaking publicly for the first time about his work investigating 19 allegations of wrongdoing in East Timor - including those against Operator K.
As part of the inquiry team that interviewed hundreds of witnesses, he spoke with Kiwi SAS soldiers who were at the ambush site.
"Some of these guys were not happy with what happened at the scene," he said.
"I believe that what they were telling us was the truth. They were extremely credible.
"It was a serious matter and some of the stuff that we were bringing up you could see physically upset them."
Also speaking publicly for the first time about the case is Andrena Gill, who was a New Zealand legal officer assigned to INTERFET headquarters in Dili.
After the firefight at Suai, some of the Kiwi SAS soldiers who were there confided in her about their concerns about what happened.
"The only thing that they were prepared to say to me in, it was an informal situation … [was] that they thought [the Australians] were doing 'dodgy activity'," the former INTERFET captain said.
"It would seem to me that if they said the word 'dodgy', I don't think they're making it up."
After the Suai mission, the New Zealand SAS also complained that they were left out of the operational debrief.
Soldiers U and T gave identical accounts.
"Once we arrived the [Australian] SASR members were finished their debrief and were moving out and they didn't want to talk to us. This concerned us as we had also been in the contact and believed that we should also have been part of the debrief."
Karl Fehlauer told Four Corners: "I think they're excluded because they may have told the truth, or they would have raised concerns or something like that."
A New Zealand SAS operator who later read a report on the Suai operation circulated by the Australian SAS said it contained "a number of discrepancies".
However, with no formal concerns being raised at the time, there was limited legal scrutiny of Australian SAS actions in combat.
Andrena Gill wanted an investigation because it was the first fatal shooting of the mission.
Four Corners has obtained a copy of her diary a day after the ambush.
"[INTERFET commander Major General Peter Cosgrove] came in and basically announced he will not authorise an investigation … However, my view is it [could] bite. It [could] be seen as a cover up."
Sir Peter Cosgrove told Four Corners that at the time he was "unaware of any alleged impropriety".
"Had I been, I would have immediately ordered an investigation," he said.
Fears for safety of witness
Ultimately, investigators found witness accounts and inconclusive post-mortems did not support a murder charge.
Instead Operator K was charged with kicking the corpses, and statements by the New Zealand SAS were crucial to the prosecution.
New Zealand investigative journalist David Fisher said there were two Kiwi soldiers who "expressed a willingness to take part and to offer their testimony".
But the New Zealand Defence Force was concerned about possible threats to the soldiers' safety, and wanted their identities protected.
"The Australian Defence Force … had said their identities will be protected by name suppression," Fisher said.
While that would have prevented their names being made public, their identities would be used in court.
"The New Zealand Defence Force had said to Australia, 'We want more than that. Name suppression isn't enough. We want them to be known by their call signs.'"
The court records remain suppressed, but Four Corners has been told the Australian military magistrate hearing the case ruled that the names of the New Zealand witnesses had to be revealed out of fairness to Operator K.
"There was an impasse. There would be no testimony from the New Zealand soldiers," Fisher said.
"The case collapsed, and that was the end of it."
Operator K was acquitted of the charge and was later offered a public apology by the Chief of Army.
'A dark stain'
For former military police investigator Karl Fehlauer, the failure to obtain a conviction against Operator K had far-reaching consequences for the Australian Defence Force and for the SAS.
"If things had have been different, and that protection had have been given to the New Zealanders, I don't think we would have had some of the issues that we had in Afghanistan," he said.
"I think it gave the wrong message to some people in various organisations that they could do what they want and get away with it."
David Fisher said every military conflict has "a dark stain".
"This would be one of Timor's dark stains," he said.
"If you don't treat things like this in an open and honest way before the public, you get a rot that sets in … that rot that sets in can eat into an organisation and cause damage that goes for years."
Operator K was contacted for comment, but did not respond.
