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Roberts-Smith Granted Bail
Ben Roberts-Smith has been granted bail despite facing serious war crimes charges, with the court citing the complexity of the case and imposing strict conditions.
Ben Roberts-Smith VC by Australian War Memorial, Government.
Australia’s most highly decorated soldier, Ben Roberts-Smith, has been granted bail after facing serious war crimes charges, following a court ruling in Sydney on Friday.
The former Special Air Service (SAS) corporal, aged 47 and a recipient of the Victoria Cross, was arrested last week and charged with five counts of murder as war crimes. Authorities allege that between 2009 and 2012, he was responsible for the deaths of multiple unarmed Afghan detainees, either by carrying out the acts himself or directing others to do so.
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Roberts-Smith denies all accusations and appeared in court via video link. His legal team argued that the case is highly unusual and likely to be prolonged, making continued detention inappropriate.
Presiding judge Greg Grogan acknowledged the exceptional nature of the case and approved bail with strict conditions designed to mitigate risks raised by prosecutors. These conditions include reporting to police three times a week, surrendering his passport before release from silver water Prison, and permitting authorities to access his electronic devices.
The criminal case follows a 2023 civil defamation ruling, in which a judge concluded there was “substantial truth” to allegations made against him. That lawsuit had been filed by Roberts-Smith against Nine Entertainment, whose newspapers first published the claims in 2018. The proceedings marked the first instance of an Australian court examining alleged war crimes involving its military personnel.
Unlike the civil case, the current charges must be proven beyond reasonable doubt.
During the bail hearing, defense barrister Slade Howell described the case as unprecedented and warned that widespread media attention could undermine the possibility of a fair trial.
He also argued that the case would involve extensive, sensitive national security evidence, likely causing delays. Keeping Roberts-Smith in custody, he said, would significantly hinder his ability to prepare an effective defense, particularly in handling classified materials securely.
The defense further noted that proceedings could be delayed if other soldiers linked to the allegations are also charged and emphasized that evidence in the criminal trial may differ substantially from that presented in the earlier civil case.
Prosecutors opposed bail, stressing the seriousness of the charges and the strength of the evidence. Prosecutor Simon Buchen argued that the case was distinct because some allegations had already been examined in court, resulting in unfavorable findings for Roberts-Smith.
He also warned that Roberts-Smith posed a potential flight risk, noting he had been close to moving overseas prior to his arrest, and raised concerns about possible interference with witnesses or evidence if he were released.
Editor’s Note:
The bail decision in the case of Ben Roberts-Smith underscores the legal complexity of prosecuting alleged war crimes, particularly where prior civil findings, national security considerations, and fair trial concerns intersect.
