Ben Roberts-Smith seeks public funding from Afghanistan Inquiry Legal Assistance Scheme for alleged war crimes defence
Updated ,first published
Ben Roberts-Smith’s lawyer has told the court the former elite soldier charged with war crimes for allegedly killing five unarmed detainees in Afghanistan is not a flight risk as he seeks bail.
A hearing is underway at Sydney’s Downing Center Local Court where the former Special Air Service corporal has applied for bail.
Roberts-Smith appeared via audiovisual link from the Silverwater Metropolitan Detention and Reception Center on Friday, dressed in prison greens.
His lawyer, Slade Howell, told the Local Court that the libel case, which resulted in findings on the balance of probabilities that his client had committed war crimes in Afghanistan, was “not a criminal case”.
Howell said the defamation case was “decided on a body of evidence that was probably nothing like the evidence in this case.”
“We say that when all the evidence is revealed or otherwise produced, a very different picture may emerge in terms of the strength of this case.
“The court needs to be conscious about this because there are a lot of unknowns at this stage.”
Howell acknowledged that Roberts-Smith would face prison time if convicted of one or more of the offences.
Roberts-Smith’s father, former judge Len Roberts-Smith, was offering “substantial bail with a deposit”. Howell said the possibility that the former elite soldier was a flight risk was “fanciful”.
Roberts-Smith applied for funding Afghanistan Investigation Legal Assistance Program It will include criminal defense, but approval has not yet been received.
The legal aid program is administered by the Commonwealth Attorney General’s Office. Provides eligible members or former members of the Defense Force with reasonable legal representation and financial assistance for associated expenses such as administrative costs and travel.
Roberts-Smith was arrested at Sydney Airport last Tuesday following a joint investigation between the Office of Special Investigations (OSI) and the Australian Federal Police (AFP).
Those eligible to receive funding from the program include current or former ADF members who are “charged with an offense relating to matters that are the subject of an AFP or OSI Afghanistan investigation”.
Ceiling values apply to the amount that can be recovered under the program. According to the latest publicly available rates, dated September 2021, the maximum rate for a senior lawyer, including a partner, is $550 per hour, up to a maximum daily rate of $3000 for six hours.
“Work undertaken by a firm of solicitors should be performed at the lowest appropriate level in the firm and billed accordingly,” a cost assessment document states.
Roberts-Smith was last week charged with five counts of Commonwealth war crimes for allegedly killing five unarmed detainees while serving in Afghanistan between 2009 and 2012. These crimes must be tried before a jury and carry a maximum sentence of life imprisonment.
three of them five counts It includes the allegation of aiding, abetting, counseling or procuring the war crime of murder. He is also charged with one count of war crimes (murder) and one count of joint war crimes (murder).
Under the crime, the alleged perpetrator must cause the death of a person “who is not taking an active part in hostilities or being a member of an organized armed group”, despite knowing or being reckless about circumstances indicating that the person was not involved in the hostilities.
The alleged perpetrator’s conduct must also have occurred “in the context of an armed conflict that is not an international armed conflict.”
The offense does not apply if “the death of the person or persons occurs during or as a result of an attack on a military objective” and the alleged perpetrator did not expect that the attack would result in “accidental death or injury to civilians, which would be excessive in relation to the concrete and direct military advantage anticipated.”
It must also be “reasonable in all circumstances” for the alleged perpetrator not to have this expectation.
Start your day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.
