Australia’s most decorated soldier, Ben Roberts-Smith, has been granted bail over war crimes allegations.
The Victoria Cross recipient and former corporal in Australia’s Special Air Service (SAS) Regiment was taken into custody last week, charged with five counts of the war crime of murder.
Investigators allege the 47-year-old was involved in the deaths of several unarmed Afghan detainees, either by killing them or ordering a subordinate to do so, between 2009 and 2012.
On Friday, lawyers for Roberts-Smith – who denies the claims and appeared via video link – argued the “unprecedented” case will face long delays and ongoing imprisonment would prevent him being able to properly mount a defence.
Judge Greg Grogan agreed Roberts-Smith’s case was exceptional, and imposed bail conditions which he said would address prosecutors’ concerns about the potential flight risk or any interference with witnesses or evidence.
Roberts-Smith will have to report to police three times a week, grant them access to his electronic devices, and forfeit his passport – which must be done before he is released from Silverwater Prison in Sydney.
The criminal case follows a 2023 civil defamation case, in which a judge found – on the balance of probabilities – there was “substantial truth” to the claims against Roberts-Smith.
Brought by Roberts-Smith against Nine newspapers which first published allegations of misconduct in 2018, the high-profile trial was the first time in history any court has examined claims of war crimes by Australian forces.
The charges he now faces will be tested to a higher standard – beyond reasonable doubt.
In a bail application at a Sydney local court on Friday, lawyers for Roberts-Smith described the case as “unchartered legal territory” for the country.
Barrister Slade Howell argued there were a number of reasons Roberts-Smith should be released on bail.
Howell said intense media scrutiny of the allegations may ultimately lead a judge to deem that a fair trial is “simply not possible”.
If the case does proceed to trial, that path will be “beset by a multitude of delays” given the size and complexity of the material, which will include sensitive national security information.
If Roberts-Smith remained in custody, he would not be able to access or store such sensitive information in a secure environment, which would “seriously compromise his right to a fair trial”, Howell argued.
The case may also be held up if authorities decide to charge other soldiers allegedly involved in the incidents, he said.
The evidence in the earlier defamation case may be “nothing like” the material in the criminal case, Howell added. “A very different picture may emerge as to the strength of the case”.
In response, prosecutors argued Roberts-Smith should remain in custody given the “gravely serious” nature of the charges and the strength of their case.
Simon Buchen SC said Roberts-Smith’s case was “unusual” because some of the allegations had already been heard in a court, which handed down “adverse findings”.
“This application does not concern wholly untested allegations and evidence, which is ordinarily the case,” he said.
He told the court that Roberts-Smith was “on the cusp” of moving overseas before his arrest, and posed a flight risk if released. They also raised concerns about the potential for interference with witnesses or evidence.
