Australia’s most decorated living veteran, Ben Roberts-Smith, walked free on bail from a Sydney prison on Friday, 10 days after he was 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 around five hours earlier, ruling the former Special Air Service Regiment corporal had established exceptional circumstances to justify his release from custody, The Associated Press reported.
Prosecutors had opposed bail and argued there was a risk that Roberts-Smith would flee Australia or interfere with witnesses and evidence.
Roberts-Smith, 47, was arrested on April 7 and charged with five counts of war crime murder involving the deaths of five Afghans in Uruzgan province in 2009 and 2012.
Australian law defines war crime murder as the intentional killing in a context of armed conflict of a person who is not taking an active part in the hostilities, such as a civilian, prisoner of war or a wounded soldier.
Roberts-Smith was driven away from Sydney's Silverwater Correctional Complex late Friday apparently wearing the same clothes he wore when police escorted him from a commercial airliner at Sydney Airport last week, news media images showed.
Roberts-Smith was awarded both the Victoria Cross and Medal of Gallantry for his service in Afghanistan and is only the second Australian veteran of the Afghanistan campaign to be charged with a war crime.
The charges follow a military report released in 2020 that found evidence elite SAS and commando regiment troops unlawfully killed 39 Afghan prisoners, farmers and other noncombatants. Around 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 his claims that newspaper articles defamed him.
At that trial, Roberts-Smith testified he had never killed an unarmed Afghan and denied ever committing a war crime. He claimed he was the victim of spiteful fellow soldiers’ lies and of others’ envy of his medals.
But while the civil court found the war crimes allegations were mostly proven on a balance of probabilities, the war crime murder charges would have to be proved in a criminal court to a higher standard of beyond reasonable doubt.
Roberts-Smith is accused of personally shooting dead two victims. He allegedly ordered subordinates to shoot the other three victims.
In opposing bail, prosecutor Simon Buchen described the charges against Roberts-Smith as “among the most serious known to the criminal law.”
Buchen said Roberts-Smith had been “on the cusp of relocating overseas” without telling authorities when he became aware that prosecutors were considering charges.
Roberts-Smith had made “advanced plans to relocate overseas. Consideration was being given to moving to various destinations overseas,” Buchen told the court.
Roberts-Smith faces a potential maximum sentence of life in prison on each conviction. He has yet to enter pleas.
Defense lawyer Slade Howell told the bail hearing Roberts-Smith’s case “may properly be described as exceptional in the sense that it is out of the ordinary.”
“The use of domestic courts to prosecute alleged war crimes committed by a highly decorated Australian soldier deployed overseas repeatedly by the Australian government to fight a war on its behalf is unprecedented and is uncharted legal territory of the common law of this country,” Howell said.
Howell also said Roberts-Smith’s “proceedings will be beset by a multitude of delays, many of which are peculiar to these proceeding.”
Potential delays could arise if prosecutors decide to charge one or more of Roberts-Smith’s fellow veterans, some of whom now live overseas, Howell said.
Roberts-Smith took part in the bail hearing by video link from prison and spoke only when asked by the judge to confirm that he could see and hear proceedings.
