"I categorically deny all of these allegations."
Ben Roberts-Smith, a 47-year-old former Special Air Service (SAS) corporal and recipient of the Victoria Cross, was granted bail under strict conditions on Friday, April 19, 2024, after spending 10 nights in custody at Sydney’s Silverwater Correctional Complex.
He faces five counts of "war crime – murder," which each carry a maximum penalty of life imprisonment. Roberts-Smith has denied any unlawful killing. The charges stem from a five-year joint investigation by the Australian Federal Police (AFP) and the Office of the Special Investigator (OSI).
Arrest and Initial Detention
Roberts-Smith was arrested by the AFP at Sydney Domestic Airport on April 7, 2024, in front of his partner, Sarah Matulin, and his twin 15-year-old daughters. Following his arrest, he was taken to the Metropolitan Remand and Reception Centre (MRRC) at Silverwater Correctional Centre in Sydney.
Prison Conditions
- Housing: Roberts-Smith was held in the Darcy pods, an older section of the facility. He was designated a protection inmate but was permitted to mix with other prisoners in communal areas.
- Initial Segregation: He spent his first week in a cell alone.
- Demeanor: A prison source described his demeanor upon arrival as "cool, calm and collected."
- Prison Governor Interaction: The prison governor, Pat Aboud, a former soldier, met Roberts-Smith upon arrival. A source stated this was Aboud’s practice for high-profile inmates, to monitor the situation and clarify that no special treatment would be given.
- Inmate and Staff Dynamics: The source noted the presence of former military personnel among both inmates and staff.
Charges and Allegations
The charges relate to five alleged incidents in Afghanistan’s Uruzgan Province between 2009 and 2012. The alleged victims are described in charge sheets as "not taking an active part in hostilities" at the time of their deaths.
- Three named alleged victims:
- Mohammed Essa: Roberts-Smith is accused of aiding, abetting, counseling, or procuring another soldier (identified as "Person 4") to kill him on April 12, 2009, at Kakarak.
- Ahmadullah: The son of Mohammed Essa. Roberts-Smith is accused of intentionally causing his death on the same date and location. It has been reported that his prosthetic leg was taken as a trophy.
- Ali Jan: Roberts-Smith is accused of aiding, abetting, counseling, or procuring another soldier (identified as "Person 11") to kill him on September 11, 2012, at Darwan.
- Two unnamed alleged victims: Referred to in court documents as "Person Under Control 1" and "Person Under Control 2." They were allegedly killed on October 20, 2012, at Syahchow. A legal source confirmed investigators have been unable to identify these individuals, relying on photographs taken by soldiers after missions.
Court documents specify that Roberts-Smith is accused of both directly committing murder and aiding other soldiers in committing murder.
Investigation Context
- Investigation Challenges: Ross Barnett, OSI director of investigations, described prosecuting alleged war crimes in Afghanistan as "incredibly complex" due to the inability to access the country, crime scenes, or conduct post-mortem examinations.
- Defamation Action: The arrest came almost three years after Roberts-Smith lost a defamation action against Nine newspapers, which had published reports in 2018 accusing him of war crimes. A Federal Court judge found the allegations to be "substantially true" on the balance of probabilities (a civil standard of proof).
- Previous SAS Charges: Roberts-Smith is the second former SAS soldier charged with war crimes related to Afghanistan. Former trooper Oliver Schulz was charged with murder in early 2023.
Bail Hearing and Conditions
The bail hearing took place before Judge Greg Grogin at Sydney’s Downing Centre Local Court.
Prosecution Opposition (Prosecutor Buchen)
The prosecution argued against bail, citing two significant risks:
- Flight Risk: The prosecution stated Roberts-Smith was "on the cusp of attempting to relocate overseas" when arrested at Sydney airport and had made "advanced plans" to move overseas without informing authorities.
- Witness Interference Risk: The prosecution argued Roberts-Smith had demonstrated "a willingness and a capacity ... to subvert court processes" through alleged use of burner phones, witness intimidation, and collusion.
Defense Arguments (Slade Howell)
The defense argued for bail based on "exceptional circumstances," including:
- Case Complexity: The case is "unprecedented" and involves "uncharted legal territory," likely requiring "many many years" to resolve due to size, complexity, and national security concerns.
- Defense Preparation: Roberts-Smith would be unable to access national security information or prepare his defense adequately from prison, compromising the fairness of the proceedings.
- Fair Trial: Howell indicated future arguments may be made that "extraordinary pre-trial publicity" prevents a fair trial.
- Compliance: Roberts-Smith is "clearly a person who is likely to comply with bail," does not have his passport, and had previously offered to surrender by appointment.
- Surety: Roberts-Smith’s father, a former judge, offered a "substantial surety."
Judge’s Ruling
Judge Greg Grogin granted bail, finding that "exceptional circumstances" existed, partly due to the likely lengthy duration of the case.
He stated that bail is not "punitive in nature" and that prosecution concerns could be mitigated through strict conditions. The judge also referenced a defendant's right to be aware of material presented against them and how classifying material as sensitive might impact defense preparation.
Bail Conditions
Following his release, Roberts-Smith was required to:
- Report to a NSW police station three times a week.
- Surrender his passport.
- Not contact prosecution witnesses.
A $250,000 surety was paid by his father.
Release and Aftermath
Roberts-Smith was released from Silverwater Correctional Complex on the evening of Friday, April 19. Corrective Services NSW employed security protocols for his departure, including a convoy, to manage "high levels of public interest." The handling of his release prompted a review by the government.
Following his release, Roberts-Smith stated, "I categorically deny all of these allegations." Despite his denial, he noted he would use the opportunity to "finally clear my name." He and his partner relocated to Queensland.
Applying for Public Funding
Roberts-Smith applied for funding from the Afghanistan Inquiry Legal Assistance Scheme to cover his legal costs. The scheme, administered by the Commonwealth Attorney-General's Department, provides financial assistance to eligible current or former Defence Force members charged in connection with the OSI investigation. The scheme has caps on fees, including a maximum of $550 per hour for a senior solicitor.
Next Court Appearance
The case is scheduled to return to court in early June.