Ben Roberts-Smith granted bail after being charged with five counts of war crime murder | Ben Roberts-Smith

Ben Roberts-Smith was granted bail under strict conditions while awaiting a possible trial on five counts of war crime murder.

Roberts-Smith applied for bail before Judge Greg Grogin at Sydney Downing Center local court on Friday morning.

Roberts-Smith, once Australia’s most noble soldier, faces five counts of war crime murder for allegedly killing unarmed civilians while serving with the Australian SAS in Afghanistan.

Each charge carries a potential sentence of life in prison. Roberts-Smith has always vehemently denied any wrongdoing.

In Downing Center local court on Friday morning, Judge Greg Grogin heard arguments on the bail application.

Each war crime murder charge is a “show cause” offense for bail application; This means that the defendant must “show cause” why his continued detention is not justified.

Roberts-Smith appeared via video link from Silverwater remand centre, clean shaven and wearing a prison-specific green tracksuit. He spoke only briefly during the hearing to confirm to Judge Grogin that he could see and hear the proceedings.

Roberts-Smith’s parents, Len and Sue, were seated in the front row of court.

Buchen, who opposed bail, argued that if Roberts-Smith was released from custody ahead of his trial, there would be two significant risks: Roberts-Smith trying to flee to avoid trial, and him trying to interfere with witnesses and evidence.

Buchen told the court Roberts-Smith was on the verge of leaving Australia permanently when he was arrested at Sydney airport last week.

“The defendant was on the verge of attempting to move abroad and it was decided to keep this information secret from the authorities he was in contact with.

“The applicant had made advanced plans to move abroad. Moving to various locations abroad was being considered… And more importantly, a decision was taken to keep this information from the authorities.”

Buchen said the “flight risk” could be mitigated by strict bail conditions, including a requirement to report regularly to NSW police.

But Buchen argued that the risk of Roberts-Smith attempting to tamper with witnesses or evidence could not be mitigated.

Buchen said the evidence before the court showed Roberts-Smith had the “willingness and capacity to subvert court processes” to conceal evidence, including the use of staked phones, intimidation of witnesses and collusion.

“It is difficult to see how bail conditions could work effectively to prevent such behaviour.”

Buchen told the court that given the seriousness of the crimes, the court should refuse to grant bail unless “exceptional circumstances” can be shown to warrant release on bail. He said the court should look at the evidence before it as a “strong prosecution case”.

Buchen said the consequences of a conviction were of “profound gravity” given the nature of the allegations detailed in the charges.

However, Roberts-Smith’s lawyers argued that there were exceptional circumstances surrounding this criminal case.

Slade Howell, for Roberts-Smith, argued that her case was unique and could be subject to significant delays “due to the size and complexity of the material” and national security concerns.

“Prosecuting these allegations will take many years and many twists and turns.”

Howell argued that Roberts-Smith would not be able to access national security information from prison and prepare her defense with her legal team.

“Fundamentally, the fairness of the trial would be compromised by the applicant having to defend himself against detention.

“There will be no viable solution to this… he needs to be released on bail to access the evidence, to speak openly with his lawyers.”

Howell also said Roberts-Smith may argue before the court in the future that she could not receive a fair trial because of her notoriety.

“In due course, it is likely that a high court or courts will need to consider whether the extraordinary pre-trial publicity surrounding these allegations, which has persisted for years and still continues, means that a fair trial of the allegations is simply not possible.”

Howell said there was serious disagreement about the facts of the allegations and it was very likely the accusations would not be proven.

“The allegations all involve highly disputed facts. They relate to events that occurred in a war zone overseas 14 to 17 years ago. Different things have been said by different people at different times over many years.”

Howell said that for any conviction, the jury must reach a unanimous verdict: Majority verdicts are not allowed in state cases.

Roberts-Smith “is certainly someone who would be willing to be released on bail” and had offered to surrender to authorities by appointment before his arrest last week.

“He doesn’t have a passport, he’s not going anywhere,” Howell defended.

Roberts-Smith’s father, a former judge, offered “significant bail”.

The five charges against Roberts-Smith relate to three incidents that occurred while he served with the SAS in Australia’s two-decade-long and ultimately unsuccessful mission in Afghanistan.

On April 12, 2009, Roberts-Smith is alleged to have been complicit in the deaths of two men, Mohammed Essa and Ahmadullah, in a village called Kakarak in Afghanistan’s southern Uruzgan province.

Roberts-Smith’s criminal court attendance notice alleges she “aided, abetted, counseled or procured another person.” [an Australian soldier anonymised as] 4. Person, in order to commit a crime… o 4. Person deliberately… caused the death of Muhammad Essa.”

The notice also alleges that Roberts-Smith “intentionally caused the death of a person identified as Ahmadullah who took no active part in the hostilities.”

The third charge relates to the alleged murder of a farmer named Ali Jan in Darwan village in September 2012. The court participation announcement states that Ali Jan “did not take an active part in the hostilities.”

The last two charges, which also include war crime murder, relate to the alleged killing of two prisoners during a mission in Syahchow in October 2012.

Roberts-Smith’s court attendance notice alleges that he “committed a crime jointly with the company.” [an Australian soldier anonymised as] Person 68, for deliberately causing the death of the person identified as ‘Person Under Control 1’, who did not take an active part in the hostilities.

He also allegedly “aided, abetted, counseled, or procured another person.” [an Australian soldier anonymised as] Person 66, in order to commit a crime… In Person 66, he intentionally caused the death of the person identified as ‘Person under Control 2’, who did not take an active part in the hostilities.”

Roberts-Smith, a former SAS corporal, was awarded the Victoria Cross for “most conspicuous bravery” during the battle of Tizak in 2010.

He was named father of the year and served as chairman of the government’s Australia Day council. He has had the high-profile and sustained support of some of Australia’s most powerful and richest people, including Kerry Stokes and Gina Rinehart.

However, he largely lost the libel case he filed against three newspapers that published allegations that he killed civilians and bullied his comrades. Federal court judge Anthony Besanko found that published allegations that Roberts-Smith was a war criminal who killed unarmed civilians four times in Afghanistan and bullied and intimidated his colleagues were proven to be substantially true—on the civilian standard on the balance of probabilities, which is lower than the criminal standard beyond a reasonable doubt. Roberts-Smith appealed the findings to the full federal court and the supreme court, but was unsuccessful on both counts.

Roberts-Smith is the second SAS soldier to be charged with war crimes for his actions in Afghanistan. Former soldier Oliver Schulz was charged in early 2023 with the murder of Afghan father Mohammed, an Afghan father of two, in 2012, for alleged war crimes.