Ben Roberts-Smith on ‘cusp’ of moving overseas when he was arrested, court told in bail hearing

Ben Roberts-Smith was planning to move overseas – and had not told authorities investigating him – when he was arrested at Sydney airport last week, a Sydney court has heard.

Roberts-Smith made a bail application before Judge Greg Grogin in Downing Centre local court Friday morning.

“The accused was on the cusp of attempting to relocate overseas, and a decision had been made to withhold that information from authorities with whom he was in contact,” Simon Buchen SC, for the prosecution, told the court.

Roberts-Smith, Victoria Cross recipient and once Australia’s most lionised soldier, faces five charges of war crime murder, over allegations he killed unarmed civilians during his service with the Australian SAS in Afghanistan.

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

In Downing Centre local court Friday morning, Judge Greg Grogin heard arguments over his application for bail.

Each charge of the war crime of murder is a “show-cause” offence for a bail application, meaning the accused must “show cause” why their continued detention is not justified.

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Roberts-Smith appeared by video link from Silverwater remand prison, clean-shaven and dressed in a prison-issue green tracksuit. He spoke only briefly during the hearing, to confirm to Judge Grogin he could see and hear proceedings.

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

Opposing bail, Buchen argued there were two significant risks if Roberts-Smith was released from remand ahead of his trial: that Roberts-Smith would attempt to flee to avoid appearing in court, and that he would attempt to interfere with witnesses and evidence.

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

“The applicant had made advanced plans to relocate overseas. Consideration was being given to moving to various destinations overseas … And importantly, a decision was made to withhold that information from authorities.”

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

But Buchen argued the risk that Roberts-Smith would attempt to interfere with witnesses or with evidence could not be mitigated.

Buchen said evidence before the court had demonstrated Roberts-Smith possessed “a willingness and a capacity … to subvert court processes” in order to conceal evidence, including the use of burner phones, intimidating witnesses, and collusion.

“It is difficult to see how bail conditions could effectively operate to prevent such conduct.”

Buchen told the court that, given the gravity of the offences, the court must refuse bail unless “exceptional circumstances” could be demonstrated to grant bail. He said the court should look at the body of evidence before it as a “strong prosecution case”.

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

But lawyers for Roberts-Smith argued that there were exceptional circumstances surrounding this criminal case.

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

“The prosecution of these allegations will take many many years, and will have many twists and turns.”

Howell argued Roberts-Smith would not be able to access national security information, nor prepare his defence with his legal team, from prison.

“Fundamentally, the fairness of the proceedings will be compromised by the applicant having to defend himself from remand custody.

“There will be no workable solution to this … to access the evidence, to speak openly with his lawyers, he must be at liberty on bail.”

Howell also flagged that Roberts-Smith might, in future, make an argument before court that, because of his notoriety, he cannot get a fair trial.

“It is very likely, in due course, that a superior court or courts may need to consider whether the extraordinary pre-trial publicity surrounding these allegations, publicity that has persisted for many years, and still persists, means that a fair trial of the allegations is simply not possible.”

Howell said there was significant disagreement over the facts of the allegations, and a very real chance that the charges could not be proven.

“The allegations all involve highly contested matters of fact. They concern events which took place overseas in a war zone between 14 and 17 years ago. There have been different things said by different people at different times over many years.”

For any conviction, a jury would need to reach a unanimous verdict, Howell said: majority decisions are not permitted in commonwealth trials.

Roberts-Smith is “clearly a person who is likely to comply with bail”, and had, prior to his arrest last week, had offered to surrender to authorities by appointment.

“He doesn’t have his passport, he isn’t going anywhere,” Howell argued.

Roberts-Smith’s father, a former judge, has offered a “substantial surety”.

The five charges against Roberts-Smith relate to three incidents during his deployments with the SAS to Australia’s two-decade, ultimately unsuccessful mission to Afghanistan.

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

Roberts-Smith’s criminal court attendance notice alleges he “aided, abetted, counselled or procured another person, [an Australian soldier anonymised as] Person 4, to commit an offence … in that Person 4 intentionally caused the death of … Mohammed Essa”.

The notice also alleges Roberts-Smith “intentionally caused the death of a person identified as Ahmadullah, who was not taking an active part in hostilities”.

The third charge relates to the alleged murder of a farmer called Ali Jan in the village of Darwan in September 2012. Ali Jan was “not taking an active part in hostilities”, the court attendance notice states.

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

Roberts-Smith is alleged, in his court attendance notice, to have “jointly committed an offence with [an Australian soldier anonymised as] Person 68, in that they intentionally caused the death of person identified as ‘Person Under Control 1’ … who was not taking an active part in hostilities,

He is also alleged to have “aided, abetted, counselled or procured another person, [an Australian soldier anonymised as] Person 66, to commit an offence … in that Person 66 intentionally caused the death of person identified as ‘Person Under Control 2’ … who was not taking an active part in hostilities.”

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

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

However, he comprehensively lost a defamation action he brought against three newspapers which published allegations he had murdered civilians and bullied his comrades. Federal court judge Anthony Besanko found it proven – to the civil standard of the balance of probabilities, which is lower than the criminal standard of beyond reasonable doubt – that there was substantial truth to the published allegations that Roberts-Smith was a war criminal who had committed four murders of unarmed civilians in Afghanistan, and had bullied and intimidated his colleagues. Roberts-Smith appealed against the findings to the full federal court and the high court, but was unsuccessful on both occasions.

Roberts-Smith is the second SAS soldier charged with war crimes over their actions in Afghanistan. Former trooper Oliver Schulz was charged in early 2023 with murdering Afghan father-of-two Dad Mohammad in an alleged war crime in 2012.

The matter was adjourned until midday on Friday.