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MELBOURNE, Australia (AP) — Australia’s most decorated living veteran, Ben Roberts-Smith, was freed from a Sydney jail on bail Friday, 10 days after being charged with war crimes in the killings of five people while serving in Afghanistan.
Judge Greg Grogin granted Roberts-Smith bail in a Sydney court about five hours earlier, ruling that the former Special Air Service Regiment corporal had established exceptional circumstances to justify his release from custody. Prosecutors had opposed bail, arguing that Roberts-Smith was a risk of fleeing to Australia or interfering with witnesses and evidence.
Roberts-Smith, 47, was arrested on April 7 and charged with five counts of war crimes murder related to the deaths of five Afghans in Uruzgan province in 2009 and 2012.
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Ben Roberts-Smith departs the Federal Court of Australia in Sydney, Australia on June 7, 2021. Ben Roberts-Smith is suing three Fairfax newspapers for defamation over reports he committed war crimes while serving in the Australian Special Air Services in Afghanistan. Ben Roberts-Smith is Australia’s most decorated living soldier and Victoria Cross recipient. (Sam Mooy/Getty Images)
Australian law defines war crime murder as the intentional killing in the context of an armed conflict of someone who is not taking an active part in the hostilities, such as a civilian, a prisoner of war or a wounded soldier.
News media photographs showed Roberts-Smith being escorted from Sydney’s Silverwater Correctional Complex late on Friday wearing the same clothes she was wearing when police escorted her to a commercial aircraft at Sydney Airport last week.
Roberts-Smith was awarded both the Victoria Cross and the Gallantry Medal for his service in Afghanistan and is only the second Australian veteran of the Afghanistan campaign to be charged with war crimes.
The charges follow a military report released in 2020 that found evidence that soldiers from the elite SAS and Commando Regiment unlawfully executed 39 Afghan prisoners, farmers and other non-combatants. Nearly 40,000 Australian military personnel served in Afghanistan between 2001 and 2021, of whom 41 were killed.
Similar allegations against Roberts-Smith were found credible in a civil court case in 2023 when a judge rejected her claims that newspaper articles had defamed her.
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At that trial, Roberts-Smith testified that he had never killed an unarmed Afghan and denied ever committing a war crime. He claimed to have been the victim of lies from malicious fellow soldiers and the jealousy of others toward his medals.
Corporal Ben Roberts-Smith VC, MG attends the Victoria Cross and George Cross Association Reunion Service at St Martin-in-the-Fields Church in London, England on May 30, 2012. (Max Mamby/Indigo/Getty Images)
But whereas the civil court found that war crimes charges were mostly proven on the balance of probabilities, war crimes murder charges must be proven to a higher standard beyond reasonable doubt in a criminal court.
Roberts-Smith is accused of personally shooting and killing the two victims. He allegedly ordered subordinates to shoot the other three victims.
Opposing bail, prosecutor Simon Buchan described the charges against Roberts-Smith as “one of the most serious charges known in the criminal law”.
Buchen said that when Roberts-Smith learned that prosecutors were considering charges he was “on the verge of being transferred abroad” without telling authorities.
Roberts-Smith had “made advanced plans to move abroad. Consideration was being made to move to various locations overseas,” Buchen told the court.
Roberts-Smith faces a maximum sentence of life in prison on each conviction. He has not filed the petition yet.
Judge bars Australia’s most decorated war veteran from committing unlawful killings, war crimes in Afghanistan
Defense lawyer Slade Howell said at a bail hearing in Roberts-Smith’s case, “It can be said to be extraordinary in the sense that it is out of the ordinary.”
Howell said, “The use of domestic courts by the Australian government to prosecute alleged war crimes committed by a highly decorated Australian soldier repeatedly deployed overseas to fight wars on its behalf is unprecedented and represents uncharted legal territory in the common law of this country.”
FILE – Ben Roberts-Smith arrives at the Federal Court in Sydney on June 9, 2021. Australia’s most decorated living war veteran lodged an appeal on Tuesday, July 11, 2023, against a civil court ruling convicting him of the unlawful killings of four Afghans. (AP Photo/Rick Rycroft, File) (AP Photo/Rick Rycroft, File)
Howell also said that Roberts-Smith’s “proceedings will be beset by a number of delays, many of which are typical of these proceedings.”
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Howell said there could be a potential delay if prosecutors decide to charge one or more of Roberts-Smith’s fellow veterans, some of whom now live overseas.
Roberts-Smith attended the bail hearing via video link from jail and spoke only when asked by the judge to confirm he could see and hear the proceedings.
