Ben Roberts-Smith is released on bail after war crimes murder charges
Judge Greg Grogen granted bail to Roberts-Smith in a Sydney court about five hours ago, ruling the former Special Air Service Regiment corporal had created exceptional circumstances to justify his release from custody. Prosecutors opposed bail and argued there was a risk Roberts-Smith would flee Australia or interfere with witnesses and evidence.
It was Roberts Smith, 47 years old He was arrested on April 7 He was charged with five counts of war crimes related to the killing of five Afghans in Uruzgan province in 2009 and 2012.
Australia’s longest living soldier has been charged amid a heated debate over war crimes allegations
Ben Roberts-Smith leaves the Federal Court of Australia in Sydney on June 7, 2021, in Sydney, Australia. Ben Roberts-Smith is suing three Fairfax newspapers for libel over reports he committed war crimes while serving in the Australian Special Forces in Afghanistan. Ben Roberts-Smith is Australia’s most decorated living soldier and recipient of the Victoria Cross. (Sam Moy/Getty Images)
Australian law defines war crimes as the intentional killing in the context of an armed conflict of a person not actively participating in the hostilities, such as a civilian, prisoner of war or wounded soldier.
Pictures published by the media showed that Roberts-Smith was taken from the Silverwater Correctional Complex in Sydney late on Friday, apparently wearing the same clothes he was wearing when police escorted him from a commercial plane at Sydney Airport last week.
Roberts-Smith was awarded the Victoria Cross and the Medal of Gallantry for his service in Afghanistan, and is the second Australian former soldier in the Afghanistan campaign to be charged with a war crime.
The charges follow a 2020 military report that found evidence that elite special forces and commando regiments unlawfully killed 39 Afghan prisoners, farmers and other non-combatants. About 40,000 Australian soldiers served in Afghanistan between 2001 and 2021, of whom 41 were killed.
Similar allegations against Roberts-Smith were found credible in a civil lawsuit in 2023 when a judge rejected his claims that newspaper articles defamed him.
At that trial, Roberts-Smith testified that he had never killed an unarmed Afghan and denied ever committing a war crime. He claimed that he was the victim of the lies of his spiteful fellow soldiers and the envy of others for his medals.
Corporal Ben Roberts-Smith VC, MG attends the Victoria Cross and George Cross Society reunion service at St Martin-in-the-Fields Church on May 30, 2012, in London, England. (Max Mumbi/Indigo/Getty Images)
But while the civilian court found that war crimes allegations were mostly proven on the balance of probabilities, war crimes murder charges must be proven in a criminal court to higher standards beyond a reasonable doubt.
Roberts Smith is accused of personally shooting two victims. He allegedly ordered his subordinates to shoot the other three victims.
In his opposition to bail, prosecutor Simon Buchen described the charges against Roberts-Smith as “among the most serious known in the criminal code”.
Buchen said Roberts-Smith was “on the verge of moving abroad” without informing authorities when he learned that prosecutors were considering charges.
Roberts-Smith had made “advanced plans to move abroad. Relocation to various destinations abroad were considered.” Buchen told the court.
Roberts-Smith faces a possible maximum sentence of life in prison on each conviction. He has not yet filed appeals.
Defense lawyer Slade Howell said Roberts-Smith’s case “may be appropriately described as exceptional in the sense that it is out of the ordinary.”
“The use of domestic courts to prosecute alleged war crimes committed by a highly decorated Australian soldier who was repeatedly deployed overseas by the Australian government to fight a war on its behalf is unprecedented and uncharted legal territory of this country’s common law,” Howell said.
FILE – Ben Roberts-Smith arrives at the Federal Court in Sydney on June 9, 2021. Australia’s most famous war veteran filed an appeal on Tuesday, July 11, 2023 against a civil court ruling that charged him with the unlawful killing of four Afghans. (AP Photo/Rick Rycroft, File) (AP Photo/Rick Rycroft, File)
Howell also said that “the Roberts-Smith proceeding will face numerous delays, many of which are specific to this proceeding.”
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Howell said potential delays could arise if prosecutors decide to charge one or more of Roberts-Smith’s old colleagues, some of whom now live abroad.
Roberts-Smith took part in the bail hearing via video link from prison and only spoke when the judge asked him to confirm he could see and hear the proceedings.
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