Ben Roberts-Smith Granted Bail Amid War Crime Allegations
Victoria Cross recipient and alleged war criminal Ben Roberts-Smith has been granted release on bail following his sensational arrest earlier this month. The 47-year-old former SAS soldier was charged with murdering five unarmed detainees while deployed in Afghanistan between 2009 and 2012, marking a significant development in a high-profile legal case that has captivated national attention.
Court Proceedings and Bail Conditions
Roberts-Smith made a successful application for bail at Sydney’s Downing Centre Local Court on Friday, where he appeared via audiovisual link from Silverwater prison, wearing prison-issued green clothing. He is expected to return to court on June 4 after paying a $250,000 surety and has been required to surrender his passport as part of stringent bail conditions. In front of a packed public gallery, defence barrister Slade Howell argued that his client would comply with these conditions, despite previous Federal Court findings that Roberts-Smith had threatened or interfered with witnesses.
"The consequence of a breach ... will be that he returns to custody which is a pretty good incentive to not interfere with witnesses," Howell told Judge Greg Grogin. He emphasised that while Roberts-Smith had considered relocating overseas, he was not a flight risk and had already handed in his passport to authorities.
Legal Arguments and Prosecution Opposition
Howell highlighted the exceptional nature of a highly respected soldier facing five counts of war crime murder in a civilian court, noting that the case would be beset with delays. He argued that Roberts-Smith needed to be free to build his defence and comply with national security obligations. Additionally, Howell suggested that a superior court might need to consider whether the extraordinary publicity surrounding the case has made it impossible for Roberts-Smith to have a fair trial.
"The prosecution of these allegations will take many, many years and will have many twists and turns," he said, adding that once more evidence emerges, a very different picture of the alleged war crimes could appear compared to the one painted during Roberts-Smith’s highly publicised defamation proceedings. "There is a real possibility (my client) will be found not guilty."
In contrast, Crown prosecutor Simon Buchen SC opposed bail, stating that the charges against Roberts-Smith were gravely serious. Buchen argued that the case was strong, with eyewitnesses to the alleged murders and evidence of the use of throw-downs—objects placed on deceased non-combatants to make it seem like they had taken part in hostilities. While acknowledging that bail conditions would prevent Roberts-Smith from fleeing the country, Buchen expressed concerns about the risk of witness tampering, citing evidence from the Federal Court defamation trial that included threatening witnesses, distorting evidence, and using burner phones to evade authorities.
Details of the Allegations
Roberts-Smith is accused of directly murdering two Afghan individuals and aiding, abetting, or procuring the murder of three more. According to court documents:
- At Kakarak in Uruzgan Province in April 2009, Roberts-Smith allegedly ordered a subordinate to kill Mohammed Essa.
- He also allegedly murdered another unarmed civilian, Ahmadullah, during that same raid.
- In September 2012, during a raid on the village of Darwan in Uruzgan Province, Roberts-Smith allegedly ordered the murder of Ali Jan.
- The remaining two charges relate to incidents in Syahchow, Uruzgan, where Roberts-Smith is accused of jointly murdering an unnamed Afghan prisoner with another soldier and ordering the execution of another.
Background and Previous Legal Battles
War crime allegations against Roberts-Smith were first exposed by Fairfax Media, now owned by Nine, in 2018. The war veteran sued the paper for defamation in the Federal Court but suffered a crushing defeat, with a judge finding the accusations of murder were, on the balance of probabilities, true. Roberts-Smith failed to overturn these findings on appeal to the full Federal Court and the High Court, setting the stage for the current criminal proceedings. His arrest by federal police last week underscores the ongoing scrutiny of Australia’s military actions in Afghanistan and the legal ramifications for those involved.
