MELBOURNE, Australia (AP) — Australia’s most decorated living veteran, Ben Roberts-Smith, walked free on bail from a Sydney prison on Friday, 10 days after he was charged with war crimes in the killings of five people while serving in Afghanistan.
The release came after Judge Greg Grogin granted Roberts-Smith bail in a Sydney court around five hours earlier, ruling the former Special Air Service Regiment corporal had established exceptional circumstances to justify his release from custody. Prosecutors had opposed bail and argued there was a risk that Roberts-Smith would flee Australia or interfere with witnesses and evidence.
Who Gets the Benefit of the Doubt
Roberts-Smith, 47, was arrested on April 7 and charged with five counts of war crime murder involving the deaths of five Afghans in Uruzgan province in 2009 and 2012. Australian law defines war crime murder as the intentional killing in a context of armed conflict of a person who is not taking an active part in the hostilities, such as a civilian, prisoner of war or a wounded soldier.
He was driven away from Sydney’s Silverwater Correctional Complex late Friday apparently wearing the same clothes he wore when police escorted him from a commercial airliner at Sydney Airport last week, news media images showed. The image of a decorated soldier moving through the machinery of arrest, court, and prison release sat alongside the fact that the charges remain unresolved.
Roberts-Smith was awarded both the Victoria Cross and Medal of Gallantry for his service in Afghanistan and is only the second Australian veteran of the Afghanistan campaign to be charged with a war crime. The honors sit in sharp contrast to the allegations now moving through the courts, with the state’s own military and legal apparatus sorting through what happened after the fact.
What the Military Left Behind
The charges follow a military report released in 2020 that found evidence elite SAS and commando regiment troops unlawfully killed 39 Afghan prisoners, farmers and other noncombatants. Around 40,000 Australian military personnel served in Afghanistan between 2001 and 2021, of whom 41 were killed.
Similar allegations against Roberts-Smith were found credible in a civil court case in 2023 when a judge rejected his claims that newspaper articles defamed him. At that trial, Roberts-Smith testified he had never killed an unarmed Afghan and denied ever committing a war crime. He claimed he has the victim of spiteful fellow soldiers’ lies and of others’ envy of his medals.
But while the civil court found the war crimes allegations were mostly proven on a balance of probabilities, the war crime murder charges would have to be proved in a criminal court to a higher standard of beyond reasonable doubt. The legal system now asks for a different level of proof, while the underlying allegations remain centered on deaths in a war zone and the people who were not taking part in hostilities.
Roberts-Smith is accused of personally shooting dead two victims. He allegedly ordered subordinates to shoot the other three victims. Prosecutor Simon Buchen described the charges against Roberts-Smith as “among the most serious known to the criminal law.”
Buchen said Roberts-Smith had been “on the cusp of relocating overseas” without telling authorities when he became aware that prosecutors were considering charges. Roberts-Smith had made “advanced plans to relocate overseas. Consideration was being given to moving to various destinations overseas,” Buchen told the court.
The Courtroom as the Last Gatekeeper
Defense lawyer Slade Howell told the bail hearing Roberts-Smith’s case “may properly be described as exceptional in the sense that it is out of the ordinary.” Howell also said Roberts-Smith’s “proceedings will be beset by a multitude of delays, many of which are peculiar to these proceeding.”
Potential delays could arise if prosecutors decide to charge one or more of Roberts-Smith’s fellow veterans, some of whom now live overseas, Howell said. Roberts-Smith faces a potential maximum sentence of life in prison on each conviction. He has yet to enter pleas.
Howell also framed the case as “the use of domestic courts to prosecute alleged war crimes committed by a highly decorated Australian soldier deployed overseas repeatedly by the Australian government to fight a war on its behalf,” calling it “unprecedented and is uncharted legal territory of the common law of this country.”
Roberts-Smith took part in the bail hearing by video link from prison and spoke only when asked by the judge to confirm that he could see and hear proceedings. For now, the court has released him, the prosecutors wanted him held, and the allegations tied to Afghan deaths remain in the hands of a system that has already spent years sorting through the wreckage.