Ben Roberts-Smith, pictured when he was serving in Afghanistan in April 2010. Photo: ADF.
A highly decorated former soldier is accused of murdering, or directing his subordinates to kill, unarmed detainees while they were under the control of Australia’s forces overseas.
Details of the allegations against Benjamin Roberts-Smith were aired in court when he successfully applied for bail after he was accused of committing war crimes.
The 47-year-old was arrested at Sydney Airport on 7 April and then charged with five counts of ‘war crime – murder’ over allegations related to his time in Afghanistan between 2009 and 2012.
He spent over a week in custody before applying for bail on Friday (17 April), where a prosecutor told the NSW Local Court the allegations were “gravely serious”. If convicted, he faced a maximum penalty of life imprisonment.
The prosecutor said the evidence included at least one eyewitness account to each of the five alleged murders, while multiple members of the Australian Defence Force witnessed one alleged killing.
He said the forensic evidence included markings on the detainees’ wrists, which he alleged corroborated the claims that they had been detained before their “execution”.
Also, the prosecutor alleged that after the five murders, steps were taken to place a “different or false complexion on what had occurred” by placing “throw-downs” at the scenes. These were alleged to be items placed on the bodies of the deceased to suggest they had engaged in hostile activities.
The prosecutor opposed bail, saying in part that Mr Roberts-Smith had made “advanced plans to relocate overseas”.
Barrister Slade Howell, appearing for the former soldier, said the allegations all involved highly contested matters of fact.
“They concern events that took place overseas in a war zone between 14 and 17 years ago,” he said.
“Some witnesses to the charged events exculpate the applicant [Mr Roberts-Smith].”
Mr Howell said the statement of alleged facts for the war crimes charges repeatedly referred to the defamation proceedings involving Mr Roberts-Smith in the Federal Court, but the defamation proceedings were decided on a body of evidence that would be nothing like the evidence for the charges.
He said the case was out of the ordinary because the use of domestic courts to prosecute alleged crimes against soldiers who had been deployed overseas to fight a war on the government’s behalf was unprecedented.
“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 … means that a fair trial of the allegations is simply not possible,” the barrister said.
“The prosecution of these allegations will take many, many years and will have many twists and turns.
“There is a real possibility that the applicant will be found not guilty.”
Judge Greg Grogin said there was a presumption of innocence in place, but under the legislation, Mr Roberts-Smith had to show special or exceptional circumstances existed to justify him being granted bail.
He said the matter would involve the National Security Information Act, which would restrict Mr Roberts-Smith’s ability to discuss the evidence with his lawyers, as well as the need to classify the evidence into sensitive and non-sensitive material.
“The reality of the situation is, I find, this matter will take years to get before the court,” Judge Grogin said.
He was satisfied exceptional circumstances existed to justify bail and granted it on numerous conditions, including Mr Roberts-Smith surrendering his passport, reporting to a police station three times a week, providing a $250,000 security bond, and not contacting multiple ADF personnel.
He also suppressed Mr Roberts-Smith’s home address, home suburb and the name of the police station where he will report to, due to the risk of “harm” to the accused if that information was released.
“Attitudes towards the accused vary quite widely in the community,” Judge Grogin said.
The matter returns to court on 4 June.
After his arrest, the Australian War Memorial said it was updating its information about the Victoria Cross recipient.
Original Article published by Albert McKnight on Region Canberra.
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