Ben Roberts-Smith: Victoria Cross awardee granted bail on murder charges but trial could be years away
Former SAS corporal Ben Roberts-Smith, accused of murder during the Afghanistan war, remained in jail for at least five hours on Friday afternoon after being released on bail due to a paperwork issue.
A representative for the family said parents Len and Sue Roberts-Smith waited there after the Downing Center registry closed at 5 p.m. because court officials told them they could not get a $250,000 check because they did not have access to the court file.
A court official said the wait may be due to a delay in entering a long list of bail conditions into the court’s computer systems.
The rewarded SAS was released on bail at noon over the objections of a lawyer for the federal Director of Public Prosecutions, who said Mr Roberts-Smith had kept his plans to move abroad secret from investigators.
He said more charges were likely and that the government would seek the maximum penalty of life imprisonment.
Local Court judge Gregory Grogin rejected the Victoria Cross recipient as a flight risk and said the use of secret evidence during Mr Roberts-Smith’s trial would make it difficult for the defense to prepare for trial if he was kept in prison.
“The truth is, I think it will take years for this matter to get to trial,” the judge said.
“If he tries to influence witnesses against him, the authorities will know immediately.
“His arrest will undoubtedly come very quickly and he will find himself in green.”
Earlier, as the veteran watched the hearing via a video link from prison, Defense lawyer Slade Howell told the magistrate that exceptional circumstances required the famous veteran to be released in preparation for the trial.
He said war crimes charges would require a unanimous decision and that it would be impossible for Mr Roberts-Smith to access classified documents needed for his defense while in prison.
“We accept that if there is a guilty verdict there will be a prison sentence,” Mr Howell said. “It is difficult to predict the outcome of any litigation regarding these allegations.
“It is indeed possible that the applicant will be found not guilty and the prosecution will be unable to prove any charges beyond a reasonable doubt.”
The decision will allow Mr Roberts-Smith to be released from Silverwater Prison in Western Sydney and return home to south-east Queensland.
Sitting with his hair neatly combed and wearing a watch on his left wrist, Mr Roberts-Smith said nothing during the hour-long hearing except to acknowledge that he could hear and see what was happening.
‘Additional charges’
No date has been set for his trial, which could be three years away. Mr Roberts-Smith was not required to enter a defence, although his lawyers said he would defend himself against the charges.
He is accused of ordering the killing of three prisoners or civilians in Afghanistan, killing one prisoner himself, and jointly killing one person.
Federal Government lawyer Simon Buchen SC said: “There is a strong possibility that further charges will be laid.”
Mr Buchen said Mr Roberts-Smith’s offer to hand himself over to the police was “difficult to reconcile with the evidence that the applicant was planning to move abroad and had decided to conceal this information from the authorities where he understood that matters should be referred to the Commonwealth DPP”.
The lawyer did not say which country Mr Roberts-Smith planned to go to or when.
Evidence
Mr. Buchen foreshadowed some of the evidence the government plans to present at the hearing. He said at least one eyewitness was present at every murder and forensic evidence would show marks on the victims’ wrists indicating they were handcuffed before they died.
“This should be considered a strong prosecution case,” he told the judge.
Parents Len Roberts-Smith and his wife, Sue, were seated in the front row in the public gallery, behind their son’s lawyers.
The Federal Government offered to pay the legal costs of veterans investigated or accused of war crimes; But that fund is unlikely to cover all the costs of a top lawyer in what has been dubbed the “murder case of the decade.”
Mr Roberts-Smith has reportedly applied for funding under the scheme.
Billionaire Kerry Stokes will not help pay for Mr Roberts-Smith’s legal defence, the tycoon’s spokesman said. He declined to comment further. He said the matter is in the judiciary.
Mr Stokes helped fund Mr Roberts-Smith’s unsuccessful libel case against Nine Entertainment Co and three journalists who accused him of war crimes. He also hired the veteran as a television station manager in Brisbane.
Mr Roberts-Smith’s arrest at Sydney Airport last week after arriving from Brisbane with his teenage daughters and partner upset many veterans, particularly because some journalists were given advance notice.
His lawyer noted that Mr Roberts-Smith could argue that the huge publicity generated by the case, including what has been dubbed the libel case of the century, made it impossible for him to secure a fair trial.
“It is likely that in time a high court or courts will need to consider whether the extraordinary pre-trial publicity surrounding this matter, which has continued for many years, means that a fair trial of the allegations is simply not possible,” Mr Howell said.
Mr Roberts-Smith became Australia’s most famous soldier after being awarded the Victoria Cross in 2011 for attacking a machine gun position during the Battle of Shah Wali Kot. He was named father of the year and president of the National Australia Day Council, and joined Seven West Media, which later became Southern Cross Media and published The Nightly.
He met the Queen and became friends with Governor-General Quentin Bryce.
He will now not be allowed to leave Queensland except for legal or medical reasons. His father, a former Western Australian judge, was required to give the court a $250,000 bail.
As the couple left the Downing Center in central Sydney, Ms Roberts-Smith said: “I love my son.”
