Ben Roberts-Smith has been released on bail under stringent conditions as he awaits a potential trial concerning five charges of murder related to war crimes.
On Friday morning, Roberts-Smith presented his bail application before Judge Greg Grogin at the Downing Centre Local Court in Sydney.
Once regarded as Australia’s most celebrated soldier, Roberts-Smith faces allegations of killing unarmed civilians during his tenure with the Australian Special Air Service (SAS) in Afghanistan. Each of the five murder charges carries a possible life sentence, a claim Roberts-Smith has consistently denied.
During the court session, Judge Grogin reviewed arguments pertaining to the bail application. The war crime murder charges are categorized as “show-cause” offenses, meaning the defendant must demonstrate why continued detention is unwarranted.
Roberts-Smith appeared via video link from Silverwater remand prison, appearing clean-shaven and wearing a green prison-issued tracksuit. He only briefly confirmed to Judge Grogin that he could see and hear the court proceedings.
Seated in the front row were Roberts-Smith’s parents, Len and Sue, who attended the hearing in support of their son.
In opposition to the bail application, prosecutor Buchen outlined two main risks if Roberts-Smith were to be released: the potential for him to flee to avoid trial and the possibility of him tampering with witnesses or evidence.
Buchen highlighted that Roberts-Smith was on the verge of leaving Australia—potentially for good—when he was apprehended at Sydney airport the previous week. He noted, “The accused was close to relocating overseas and had decided to conceal this information from the authorities.”
While Buchen acknowledged that stringent bail conditions could mitigate the flight risk by requiring Roberts-Smith to regularly report to the New South Wales police, he asserted that the risk of witness interference could not be adequately addressed through bail conditions.
He presented evidence suggesting that Roberts-Smith had demonstrated a willingness to obstruct judicial processes, including the use of burner phones, intimidating witnesses, and engaging in collusion. “It is hard to see how any bail conditions could effectively prevent such actions,” Buchen remarked.
Buchen argued that given the severe nature of the charges, bail should be denied unless “exceptional circumstances” could be proven. He urged the court to consider the body of evidence as indicative of a strong case for the prosecution.
Conversely, Roberts-Smith’s legal team contended that his situation is exceptional. Lawyer Slade Howell argued that the complexities and size of the case materials would lead to significant delays, particularly due to national security implications.
Howell asserted that Roberts-Smith would be unable to access crucial national security information or prepare his defense effectively while incarcerated. “The fairness of the proceedings is at risk if the applicant must defend himself from remand custody,” he stated. “To engage with evidence and converse openly with his legal team, he needs to be released on bail.”
Furthermore, Howell raised the possibility that Roberts-Smith might later argue that the extensive media coverage surrounding the allegations could impede his chances of a fair trial. “Given the prolonged and ongoing publicity, it is likely that a higher court may need to determine whether a fair trial is feasible,” he added.
Howell emphasized the significant discrepancies in the factual basis of the charges, noting the events occurred in a war zone 14 to 17 years ago, with multiple perspectives having been offered over time. He pointed out that for a conviction, a unanimous jury decision is necessary, as majority verdicts are not allowed in Commonwealth trials.
He characterized Roberts-Smith as someone likely to adhere to bail requirements, highlighting that prior to his arrest, Roberts-Smith had offered to surrender to authorities. “He doesn’t have his passport; he isn’t going anywhere,” Howell insisted.
Roberts-Smith’s father, a former judge, has pledged a substantial surety in support of the bail application.
The five charges against Roberts-Smith pertain to three separate incidents during his deployment with the SAS as part of Australia’s prolonged mission in Afghanistan, which ultimately did not achieve its goals.
On April 12, 2009, Roberts-Smith is accused of involvement in the deaths of two men, identified as Mohammed Essa and Ahmadullah, in a village called Kakarak in Uruzgan province, southern Afghanistan. The allegations state that he “aided, abetted, counselled or procured” another soldier, referred to as Person 4, to cause the death of Mohammed Essa and that he “intentionally caused the death” of Ahmadullah, who was not engaged in combat.
