MELBOURNE, Australia (AP) — Australia’s most decorated living veteran, Ben Roberts-Smith, was released on bail from a Sydney jail 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 about five hours earlier in a Sydney court, ruling that the former Special Air Service Regiment corporal had established exceptional circumstances to justify his release from custody. Prosecutors had opposed bail, arguing there was a risk Roberts-Smith would flee Australia or interfere with witnesses and evidence.
Roberts-Smith, 47, was arrested April 7 and charged with five war crimes that killed five Afghans in Uruzgan province in 2009 and 2012.
AUSTRALIA’S MOST DECORATED LIVING SOLDIER CHARGED AMID FIRE DEBATE OVER WAR CRIMES CHARGES
SYDNEY, AUSTRALIA – JUNE 07: Ben Roberts-Smith leaves the Federal Court of Australia in Sydney on June 07, 2021 in Sydney, Australia. Ben Roberts-Smith is suing three Fairfax newspapers for defamation over reports that he committed war crimes while serving with Australia’s Special Air Services in Afghanistan. Ben Roberts-Smith is Australia’s most decorated living soldier and has been awarded the Victoria Cross. (Sam Mooy/Getty Images)
Australian law defines war crime murder as the intentional killing, in the context of armed conflict, of a person not taking an active part in 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 off a commercial plane at Sydney Airport last week, news media footage showed.
Roberts-Smith was awarded both the Victoria Cross and the 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 that elite SAS and commando regiment forces had unlawfully killed 39 Afghan prisoners, farmers and other non-combatants. About 40,000 Australian soldiers served in Afghanistan between 2001 and 2021, 41 of whom were killed.
Similar allegations against Roberts-Smith were found credible in a civil lawsuit in 2023, when a judge rejected his claims that newspaper articles defamed him.
AUSTRALIA’S MOST DECORATED WAR VETERAN APPEALS TO COURT, FOUNDING HIM GUILTY FOR UNLAWFULLY KILLING AFGHANANS
During that trial, Roberts-Smith testified that he had never killed an unarmed Afghan and denied ever committing a war crime. He claimed he was a victim of the lies of hateful fellow soldiers and of others’ envy of his medals.
Corporal Ben Roberts-Smith VC, MG attends a Victoria Cross and George Cross Association reunion service at St. Martin-in-the-Fields Church on May 30, 2012 in London, England. (Max Mumby/Indigo/Getty Images)
But while the civil court found that the war crimes charges were largely proven on a balance of probabilities, the war crimes charges would have to be proven in a criminal court at a higher level and beyond a reasonable doubt.
Roberts-Smith is accused of personally shooting 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 in criminal law”.
Buchen said Roberts-Smith was “about to move abroad” without notifying authorities when he became aware that prosectors were considering charges.
Roberts-Smith had made “advanced plans to move abroad. Considerations were being made to move to various overseas destinations,” Buchen told the court.
Roberts-Smith faces a possible maximum sentence of life in prison with each conviction. He has yet to enter pleas.
Judge rules Australia’s most decorated war veteran unlawfully killed prisoners of war and committed war crimes in AFGHANISTAN
Lawyer Slade Howell told the bail hearing that Roberts-Smith’s case “can rightly be described as exceptional in the sense that it is extraordinary”.
“The use of domestic courts to prosecute alleged war crimes committed by a highly decorated Australian soldier who has been repeatedly deployed overseas by the Australian government to fight a war on its behalf is unprecedented and is uncharted legal territory in the common law of this country,” Howell said.
FILE – Ben Roberts-Smith arrives at the Federal Court in Sydney on June 9, 2021. Australia’s most decorated living war veteran on Tuesday, July 11, 2023, appealed a civil court ruling that blamed him for the unlawful killing of four Afghans. (AP Photo/Rick Rycroft, File) (AP Photo/Rick Rycroft, File)
Howell also said that the “Roberts-Smith proceeding will be plagued by a host of delays, many of which are endemic to this proceeding.”
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Possible delays could arise if prosecutors decide to charge one or more of Roberts-Smith’s fellow veterans, some of whom now live abroad, Howell said.
Roberts-Smith attended the bail hearing via video link from prison and only spoke when the judge asked him to confirm he could see and hear the proceedings.
