Australia's most decorated soldier, Ben Roberts-Smith, has been labelled a 'flight risk' by prosecutors during a dramatic bail hearing where he appeared via audio-visual link from prison. The Victoria Cross recipient, dressed in prison greens, listened intently to legal arguments as supporters gathered outside Sydney's Downing Centre Local Court demanding his freedom.
Courtroom Drama Over Bail Application
Roberts-Smith's lawyer, Slade Howell, argued that keeping his client in custody would only delay a case likely to take years, partly because Roberts-Smith would not have direct access to defence material containing 'matters of national security'. The prosecutor countered that more charges were likely and the Crown's case was 'significant', insisting Roberts-Smith should remain in custody because he was planning to move overseas before being charged.
Unprecedented Legal Situation
Mr Howell told the court the case was unprecedented because his client was a soldier deployed by the Australian government to fight a war on its behalf, only to be arrested at Sydney Airport over allegations dating back 14 years. 'The Crown's written submissions seem to submit that if it gets bad enough, in a couple of years, he can apply for bail then,' Mr Howell argued.
The prosecutor acknowledged the matter would likely take longer than most cases and that Roberts-Smith would face difficulties accessing defence material from custody, but maintained this wasn't enough to mitigate the risk of his release.
Arrest During Family Shopping Trip
Roberts-Smith was arrested on April 7 at Sydney's Domestic Airport after getting off a Qantas flight from Brisbane. He had been taking his 15-year-old twin daughters and partner Sarah Matulin on an Easter school holidays shopping expedition. All four were holding return tickets to Brisbane and travelled without checked luggage.
A source close to Roberts-Smith said federal authorities knew he was making the journey and could have arrested him when he returned to his home state that evening. The soldier had been held for ten days at the Metropolitan Remand and Reception Centre at Silverwater before Friday's hearing.
Complex War Crimes Investigation
Roberts-Smith has been charged with five counts of 'war crime - murder' allegedly committed between 2009 and 2012 while serving with the Special Air Service in Afghanistan. The charges stem from a five-year joint investigation by the Australian Federal Police and the Office of the Special Investigator.
OSI director of investigations Ross Barnett said prosecuting war crimes allegedly committed in Afghanistan was 'incredibly complex', noting investigators couldn't access the crime scenes in a country 9,000km from Australia. 'We don't have photographs, site plans, measurements, the recovery of projectiles, blood-spatter analysis, all of those things we'd normally get at a crime scene,' he explained.
Details of Alleged Murders
Court documents reveal Roberts-Smith is accused of:
- Shooting dead an unarmed Afghan
- Murdering another with an SAS comrade
- Ordering the execution of three more detainees
Two of the five Afghan men he's accused of murdering have never been identified by war crimes investigators. One alleged victim is described only as 'Person Under Control 1', while another is known as 'Person Under Control 2'. Both were allegedly killed on October 20, 2012 at Syahchow in Uruzgan Province.
Named Victims and Trophy Allegations
Three of Roberts-Smith's alleged victims are named in court documents. He is accused of aiding Person 4 to shoot dead Mohammed Essa on April 12, 2009, and intentionally causing the death of Ahmadullah on the same day at Kakarak in Uruzgan Province.
Ahmadullah's prosthetic leg was allegedly taken as a trophy after he was killed and later used as a drinking vessel at the SAS's Tarin Kowt base. Roberts-Smith is further charged with aiding Person 11 to kill Ali Jan at Darwan on September 11, 2012 - the shepherd Nine newspapers claimed Roberts-Smith kicked off a cliff before ordering his execution.
Legal Strategy and State Jurisdiction
Roberts-Smith believes authorities chose to arrest and prosecute him in New South Wales because his case would be more likely to succeed there than in Queensland. NSW no longer runs committal hearings where a judge weighs prosecution evidence to determine if there's sufficient evidence for trial.
His lawyers believe if their client faced a committal hearing in Queensland, where such hearings are still held, the evidence against him might be considered too weak for a trial to proceed. Each of the charges against Roberts-Smith carries a maximum penalty of life in prison, though he has always denied involvement in any unlawful killings.
Broader War Crimes Investigations
The AFP and OSI have commenced 53 investigations involving allegations of war crimes committed by Australian soldiers in Afghanistan, with 10 ongoing. Former SAS member Oliver Schulz was the first Australian soldier charged with a murder allegedly committed in Afghanistan.
Schulz was arrested in March 2023 and spent a week behind bars before being granted $200,000 bail. He has been listed to face trial in February 2027, with Judge Jennifer Atkinson noting any further time in custody would be 'onerous and difficult and dangerous'.
Defamation Case Preceding Charges
Roberts-Smith's arrest came almost three years after he lost a defamation action against Nine newspapers, which published a series of reports in 2018 accusing him of being a war criminal. The case against Roberts-Smith will be run by the Commonwealth Director of Public Prosecutions, with his defence funded by the Afghanistan Inquiry Legal Assistance Scheme.
During the bail hearing, Roberts-Smith frowned and shook his head each time the prosecutor suggested he could interfere with witnesses, flout bail conditions, or use burner phones to contact others involved in the case. His lawyer argued the idea that Roberts-Smith could flee the country if released was 'fanciful', noting he knew for years he was being investigated and never tried to abscond.
The hearing was adjourned until midday as the legal battle over Australia's most decorated soldier continues to unfold.
