Veteran Soldier Ben Roberts-Smith Granted Bail on War Crime Charges
Ben Roberts-Smith, Australia's most decorated living soldier and recipient of the Victoria Cross, has been granted bail following allegations of war crimes.
The former corporal of Australia's Special Air Service (SAS) Regiment was taken into custody last week and charged with five counts of murder, classified as war crimes.
Authorities allege that the 47-year-old was involved in the deaths of several unarmed Afghan detainees between 2009 and 2012, either by personally killing them or ordering subordinates to do so.
Bail Hearing and Judicial Remarks
During the bail hearing on Friday, Roberts-Smith's legal team, who maintain his innocence, contended that the case is "unprecedented" and likely to face significant delays. They argued that continued imprisonment would hinder his ability to mount an effective defense.
"The unprecedented case will face long delays and ongoing imprisonment would prevent him being able to properly mount a defence," his lawyers stated.
Judge Greg Grogan acknowledged the exceptional nature of the case, noting that Roberts-Smith could spend "not weeks or months, but years - possibly years and years - in custody before a trial is reached."
"He is likely to spend not weeks or months, but years - possibly years and years - in custody before a trial is reached," Judge Grogan said.
Despite these concerns, the judge granted bail under strict conditions designed to mitigate risks of flight or interference with witnesses or evidence.
Bail Conditions and Court Appearance
Roberts-Smith appeared via video link, dressed in prison greens, and remained motionless as bail was granted.
Conditions of his bail include reporting to police three times weekly, providing access to his electronic devices, and surrendering his passport prior to release from Silverwater Prison in Sydney.
Judge Grogan also imposed a bail surety of A$250,000 and restricted Roberts-Smith's travel within Australia.
"If he breached the bail conditions, his arrest would no doubt come very swiftly and he would find himself once again donned in green," Grogan added.
Background: Civil Defamation Case and War Crime Allegations
This criminal case follows a 2023 civil defamation trial in which a judge found, on the balance of probabilities, that there was "substantial truth" to the allegations against Roberts-Smith.
Roberts-Smith had initiated the defamation suit against Nine newspapers that first published the misconduct allegations in 2018. This high-profile trial marked the first time any Australian court examined claims of war crimes by Australian forces.
The current criminal charges will be evaluated under the higher standard of proof "beyond reasonable doubt."
Legal Arguments and Challenges Ahead
In their bail application, Roberts-Smith's lawyers described the case as "uncharted legal territory" for Australia and presented several reasons supporting bail.
Barrister Slade Howell highlighted the intense media scrutiny surrounding the allegations, suggesting it might ultimately lead a judge to determine that a fair trial is "simply not possible."
"The intense media scrutiny of the allegations may ultimately lead a judge to deem that a fair trial is 'simply not possible'."
Howell also noted that if the case proceeds to trial, it will likely encounter numerous delays due to the volume and complexity of evidence, including sensitive national security information.
He emphasized that Roberts-Smith would be unable to securely access or store such sensitive material while in custody, which would "seriously compromise his right to a fair trial."
Further delays could arise if authorities decide to charge other soldiers allegedly involved in the incidents.
Regarding the evidence, Howell remarked that the material presented in the earlier defamation case may differ significantly from that in the criminal proceedings, potentially altering the perceived strength of the case.
"A very different picture may emerge as to the strength of the case," Howell said.
Prosecutors' Position
Prosecutors argued that Roberts-Smith should remain in custody due to the "gravely serious" nature of the charges and the robustness of their case.
Simon Buchen SC described the case as "unusual" because some allegations had already been examined in court, resulting in "adverse findings."
"This application does not concern wholly untested allegations and evidence, which is ordinarily the case," he said.
Buchen also informed the court that Roberts-Smith was "on the cusp" of relocating overseas before his arrest, presenting a flight risk if released.
Additionally, prosecutors expressed concerns about the possibility of interference with witnesses or evidence.
