Ben Roberts-Smith Planned Overseas Move Before Arrest, Court Told
Former SAS soldier charged with five counts of war crime murder awaits bail decision at Silverwater prison.
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Ben Roberts-Smith was preparing to relocate overseas and had not disclosed this to authorities investigating him when he was arrested at Sydney airport last week, a Sydney court heard.
Roberts-Smith submitted a bail application before Judge Greg Grogin at Downing Centre Local Court on Friday morning.
“The accused was on the cusp of attempting to relocate overseas, and a decision had been made to withhold that information from authorities with whom he was in contact,”
said Simon Buchen SC, representing the prosecution.
Roberts-Smith, a Victoria Cross recipient and once regarded as Australia’s most celebrated soldier, faces five charges of war crime murder, alleging he killed unarmed civilians during his service with the Australian SAS in Afghanistan.
Each charge carries a potential life sentence. Roberts-Smith has consistently denied any wrongdoing.
During the hearing at Downing Centre Local Court on Friday morning, Judge Greg Grogin considered arguments regarding the bail application.
Each war crime murder charge is a "show-cause" offence for bail, requiring the accused to demonstrate why continued detention is not justified.
Roberts-Smith appeared via video link from Silverwater remand prison, clean-shaven and wearing a prison-issued green tracksuit. He spoke briefly to confirm he could see and hear the proceedings.
His parents, Len and Sue Roberts-Smith, were present in the front row of the courtroom.
Opposing bail, Buchen outlined two significant risks if Roberts-Smith were released before trial: the risk of fleeing to avoid court appearances and the risk of interfering with witnesses or evidence.
“The applicant had made advanced plans to relocate overseas. Consideration was being given to moving to various destinations overseas … And importantly, a decision was made to withhold that information from authorities.”
Buchen stated Roberts-Smith was on the verge of leaving Australia, potentially permanently, when arrested at Sydney airport last week.
He noted the flight risk could be mitigated by strict bail conditions, such as regular reporting to NSW police.
However, Buchen argued the risk of interfering with witnesses or evidence could not be adequately managed.
“It is difficult to see how bail conditions could effectively operate to prevent such conduct.”
Buchen cited evidence indicating Roberts-Smith had demonstrated a willingness and capacity to subvert court processes to conceal evidence, including using burner phones, intimidating witnesses, and colluding.
He emphasized the gravity of the offences and stated the court must refuse bail unless exceptional circumstances are shown.
“The court should look at the body of evidence before it as a ‘strong prosecution case’,”
Buchen said, adding the consequences of conviction were of profound gravity.
Roberts-Smith’s legal team argued exceptional circumstances exist in this case.
Slade Howell, representing Roberts-Smith, described the case as unique and expected significant delays due to the volume and complexity of material and national security concerns.
“The prosecution of these allegations will take many many years, and will have many twists and turns.”
Howell contended Roberts-Smith would be unable to access national security information or prepare his defence adequately from prison.
“Fundamentally, the fairness of the proceedings will be compromised by the applicant having to defend himself from remand custody. There will be no workable solution to this … to access the evidence, to speak openly with his lawyers, he must be at liberty on bail.”
He also indicated Roberts-Smith might later argue that due to his notoriety, a fair trial is impossible.
“It is very likely, in due course, that a superior court or courts may need to consider whether the extraordinary pre-trial publicity surrounding these allegations, publicity that has persisted for many years, and still persists, means that a fair trial of the allegations is simply not possible.”
Howell noted significant factual disputes and the possibility that charges may not be proven.
“The allegations all involve highly contested matters of fact. They concern events which took place overseas in a war zone between 14 and 17 years ago. There have been different things said by different people at different times over many years.”
He added that any conviction would require a unanimous jury verdict, as majority decisions are not permitted in Commonwealth trials.
Howell stated Roberts-Smith is likely to comply with bail conditions and had previously offered to surrender to authorities by appointment.
“He doesn’t have his passport, he isn’t going anywhere,”
Howell said.
Roberts-Smith’s father, a former judge, has offered a substantial surety.
Details of the Charges
The five charges relate to three incidents during Roberts-Smith’s deployments with the SAS in Australia’s two-decade mission in Afghanistan.
On 12 April 2009, Roberts-Smith is alleged to have been complicit in the deaths of two men, Mohammed Essa and Ahmadullah, in Kakarak village, Uruzgan province, southern Afghanistan.
The criminal court attendance notice alleges Roberts-Smith:
“aided, abetted, counselled or procured another person, [an Australian soldier anonymised as] Person 4, to commit an offence … in that Person 4 intentionally caused the death of … Mohammed Essa”.
It also alleges he:
“intentionally caused the death of a person identified as Ahmadullah, who was not taking an active part in hostilities”.
The third charge relates to the alleged murder of a farmer named Ali Jan in Darwan village in September 2012. Ali Jan was not participating in hostilities, according to the court attendance notice.
The final two charges concern the alleged murder of two prisoners during a mission in Syahchow in October 2012.
The notice alleges Roberts-Smith:
“jointly committed an offence with [an Australian soldier anonymised as] Person 68, in that they intentionally caused the death of person identified as ‘Person Under Control 1’ … who was not taking an active part in hostilities,”
and also:
“aided, abetted, counselled or procured another person, [an Australian soldier anonymised as] Person 66, to commit an offence … in that Person 66 intentionally caused the death of person identified as ‘Person Under Control 2’ … who was not taking an active part in hostilities.”
Background and Previous Legal Proceedings
Roberts-Smith, a former SAS corporal, was awarded the Victoria Cross for conspicuous gallantry during the 2010 Battle of Tizak.
He was named father of the year and served as chair of the government’s Australia Day council. He has received sustained support from prominent Australians including Kerry Stokes and Gina Rinehart.
However, he lost a defamation case against three newspapers that published allegations he murdered civilians and bullied comrades. Federal Court Judge Anthony Besanko found it proven on the balance of probabilities that Roberts-Smith was a war criminal who committed four murders of unarmed civilians in Afghanistan and intimidated colleagues.
Roberts-Smith appealed unsuccessfully to the Full Federal Court and the High Court against these findings.
He is the second SAS soldier charged with war crimes related to actions in Afghanistan. Another former trooper faces charges over the alleged murder of Afghan father-of-two Dad Mohammad in 2012.
The bail hearing was adjourned until midday on Friday.
