In a significant legal development, Ben Roberts-Smith, Australia’s most highly decorated veteran still living, was released on bail from a Sydney prison on Friday. Arrested 10 days prior, Roberts-Smith faced charges of committing war crimes during his military service in Afghanistan, specifically allegations surrounding the deaths of five individuals.
The decision to grant bail was made by Judge Greg Grogin in a Sydney courtroom, approximately five hours before Roberts-Smith’s release. The judge determined that the former corporal of the Special Air Service Regiment presented exceptional circumstances that warranted his release. Despite this, prosecutors had strongly opposed the bail, citing concerns that Roberts-Smith might attempt to leave the country or tamper with evidence and witnesses.
The 47-year-old veteran was taken into custody on April 7, charged with five counts of war crime murder. These charges relate to incidents that occurred in Afghanistan’s Uruzgan province during the years 2009 and 2012.
Roberts-Smith, who is pursuing a defamation case against three Fairfax newspapers for allegations of war crimes, is known for being Australia’s most decorated soldier, having received the prestigious Victoria Cross. This legal battle unfolds as he seeks to protect his reputation amidst serious accusations.
Under Australian law, war crime murder is defined as the intentional killing of individuals who are not actively participating in hostilities. This includes civilians, prisoners of war, or wounded soldiers, in the context of armed conflict.
Following his release, Roberts-Smith was seen departing Sydney’s Silverwater Correctional Complex. Media reports indicated that he appeared to be wearing the same attire from when authorities apprehended him at Sydney Airport the previous week.
Roberts-Smith was awarded both the Victoria Cross and Medal of Gallantry for his service in Afghanistan and is only the second Australian veteran of the Afghanistan campaign to be charged with a war crime.
The charges follow a military report released in 2020 that found evidence elite SAS and commando regiment troops unlawfully killed 39 Afghan prisoners, farmers and other noncombatants. Around 40,000 Australian military personnel served in Afghanistan between 2001 and 2021, of whom 41 were killed.
Similar allegations against Roberts-Smith were found credible in a civil court case in 2023 when a judge rejected his claims that newspaper articles defamed him.
At that trial, Roberts-Smith testified he had never killed an unarmed Afghan and denied ever committing a war crime. He claimed he has been the victim of spiteful fellow soldiers’ lies and of others’ envy of his medals.
Corporal Ben Roberts-Smith VC, MG attends a Victoria Cross and George Cross Association Reunion Service at St. Martin-in-the-Fields Church on May 30, 2012, in London, England. (Max Mumby / Indigo / Getty Images)
But while the civil court found the war crimes allegations were mostly proven on a balance of probabilities, the war crime murder charges would have to be proved in a criminal court to a higher standard of beyond reasonable doubt.
Roberts-Smith is accused of personally shooting dead two victims. He allegedly ordered subordinates to shoot the other three victims.
In opposing bail, prosecutor Simon Buchen described the charges against Roberts-Smith as “among the most serious known to the criminal law.”
Buchen said Roberts-Smith had been “on the cusp of relocating overseas” without telling authorities when he became aware that prosectors were considering charges.
Roberts-Smith had made “advanced plans to relocate overseas. Consideration was being given to moving to various destinations overseas,” Buchen told the court.
Roberts-Smith faces a potential maximum sentence of life in prison on each conviction. He has yet to enter pleas.
Defense lawyer Slade Howell told the bail hearing Roberts-Smith’s case “may properly be 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 deployed overseas repeatedly by the Australian government to fight a war on its behalf is unprecedented and is uncharted legal territory of the common law of this country,” Howell said.
FILE – Ben Roberts-Smith arrives at the Federal Court in Sydney on June 9, 2021. Australia’s most decorated living war veteran lodged an appeal on Tuesday, July 11, 2023, against a civil court ruling that blamed him for the unlawful killings of four Afghans. (AP Photo/Rick Rycroft, File) (AP Photo/Rick Rycroft, File)
Howell also said Roberts-Smith’s “proceedings will be beset by a multitude of delays, many of which are peculiar to these proceeding.”
Potential delays could arise if prosecutors decide to charge one or more of Roberts-Smith’s fellow veterans, some of whom now live overseas, Howell said.
Roberts-Smith took part in the bail hearing by video link from prison and spoke only when asked by the judge to confirm that he could see and hear proceedings.
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