AFP fails to identify leak that cruelled Ben Roberts-Smith war crimes investigation

A civil court found on the balance of probabilities that Roberts-Smith was responsible for the killing of four civilians in Afghanistan, but more than seven years after he was referred to AFP he has still not been charged with a criminal offence.

The leak investigation cost Jabbour his career and a possible slide into his senior position as AFP commissioner. It also led to a further investigation which showed he was facing charges relating to two unrelated incidents which were dismissed by a magistrate in 2021. A subsequent report by the anti-corruption body (the Australian Law Enforcement Integrity Commission) also found that these charges could not be sustained.

The documents include Cheeseman’s final report and statements from three key officers involved: then-superintendent Andrew Colvin, then deputy Neil Gaughan and then professional standards chief Nigel Ryan. These three had expressed their suspicions about Jabbour’s actions to the police anti-corruption commission.

The documents were first published on this imprint following an FOI request filed in 2021. In a series of objections that have changed over the years, the AFP has argued that they are too sensitive to be disclosed, would unreasonably affect people’s personal privacy, disrupt police operations and deter officers from reporting corruption against colleagues.

Emilios Kyrou, president of the Administrative Review Tribunal, eventually ruled that most of the documents were in the public interest and ordered the AFP to publish them.

Keelty, who lost his job and renounced the Order of Australia in 2020 after his meetings with Roberts-Smith were revealed, welcomed the release of the documents, saying the police attempted a cover-up by trying to keep them secret using arguments that were lies.

He said Cheeseman’s findings vindicated him and Jabbour.

“How much did it cost to defend the embarrassment of a flawed investigation and egregious abuse of power?” Keelty asked. “The investigation went on for years… and then they tried to hide it from the public. It’s incomprehensible.”

In a statement, the AFP said it welcomed the court’s decision “to grant the majority of AFP’s immunity requests on the documents”, saying the court’s reasons supported the approach taken by the force.

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“AFP acted appropriately to maintain the confidentiality of these processes,” he said.

Jabbour did not answer questions about whether his investigation had been misunderstood.

Jabbour became the prime suspect in the leak due to a 22-minute phone call he had with Keelty, who led to his first meeting with Roberts-Smith in June 2018. Keelty and Jabbour deny that any information regarding war crimes was conveyed in this meeting.

A second report by the Australian Law Enforcement Integrity Commission, obtained by this imprint outside the FOI system, found there was “no evidence that Mr Jabbour was informed of the referral” at the time.

But after meeting Roberts-Smith, Keelty called a war criminal confidant to say he believed he would be investigated by the AFP.

Keelty had previously met commissioner Andrew Colvin and later spoke to another AFP deputy commissioner, Neil Gaughan. Gaughan had Ryan, head of professional standards, take notes of the call.

Colvin’s statement, published in FOI documents, stated that he was aware of the war crimes referral from June 1, two weeks before Keelty’s meeting with Roberts-Smith. He also confirmed that he speaks to Keelty regularly on a variety of topics.

“I don’t remember discussing this. [war crimes] investigation or Mr Roberts-Smith. [Keelty] and I can’t imagine why I would do this. It is not unusual for us to discuss matters contained in the public record. “But these will be limited to only what is publicly known.”

At the time, the imprint had begun reporting on allegations of war crimes being investigated as part of a military investigation in Afghanistan, but had not yet named Roberts-Smith.

Gaughan’s statement, also published in the FOI documents, stated that Jabbour informed him that Keelty had met with Roberts-Smith. Keelty arranged for Ryan to take notes when Gaughan called.

The Cheeseman report makes clear that Gaughan, Ryan and Colvin referred police to the anti-corruption agency.

Ryan’s notes, also partially published, show Keelty backing Roberts-Smith but insisting Jabbour said nothing to him.

“Mr Keelty also stated that he intended to speak to Mr Roberts-Smith and tell him that if he were approached by the AFP he should identify himself as a member of the co-operative. DC Gaughan told Mr Keelty that he had no knowledge of the matters other than three letters that had already been sent in relation to the investigation. [publicly] known.”

It is unclear which letters the statement refers to, and the unredacted words in the investigation report do not address this question.

Jabbour said he hoped the botched investigation would lead to better police procedures to “prevent similar situations in the future and ensure that others are not subjected to similar circumstances.”

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