Updated ,first published
Ben Roberts-Smith has been granted bail after being charged with war crimes over the alleged murders of five unarmed detainees in Afghanistan.
Judge Greg Grogin granted the former Special Air Service corporal bail after a hearing in Sydney’s Downing Centre Local Court on Friday. His release, after 10 days in custody, is subject to a series of strict conditions.
Roberts-Smith, dressed in prison greens, appeared at the bail hearing via audiovisual link from Silverwater’s Metropolitan Remand and Reception Centre.
Outside Silverwater Correctional Complex, a lone Roberts-Smith supporter waved a placard at passing traffic. “Free Ben Roberts Smith,” the sign read.
Grogin said the court needed to be satisfied, in part, that there were “exceptional circumstances” justifying bail.
He said there was no dispute the offences with which Roberts-Smith were charged were serious and, if proven, would lead to a lengthy prison sentence.
But he made clear that bail was “not punitive in nature” and Roberts-Smith was entitled to the presumption of innocence.
The matter would take “years to get before the court”, Grogin said, and Roberts-Smith would “surely” spend years in custody if he was not released on bail.
He said Commonwealth secrecy provisions might “severely restrict” visits by Roberts-Smith’s legal team to a correctional facility, and “severely restrict access to material against” him.
Grogin said there was “no way anyone today can predict what the outcome of the trial would be”, when it would be, or “if” it would be.
Bail conditions were sufficient to ameliorate risks raised by Commonwealth prosecutors and there were exceptional circumstances, he said.
Roberts-Smith is subject to tight travel restrictions and is not to contact any prosecution witness directly or indirectly.
“One acceptable person is to enter into an agreement, and deposit security, to forfeit $250,000 if the applicant fails to comply with his bail acknowledgement,” Grogin said.
Roberts-Smith’s barrister, Slade Howell, had told the Local Court his client’s defamation proceedings, which resulted in findings on the balance of probabilities that he committed war crimes in Afghanistan, were “not criminal proceedings”.
The defamation case was “decided on a body of evidence that is likely to be nothing like the body of evidence in this case”, Howell said.
“By the time all the evidence is disclosed or otherwise produced, we say a very different picture may emerge as to the strength of this case.
“The court should be conscious of this because there are many unknowns at this stage.”
‘Substantial surety’ offered
Howell said Roberts-Smith’s father, former judge Len Roberts-Smith, was offering a “substantial surety with a deposit”. The suggestion the former elite soldier was a flight risk was “fanciful”, Howell said.
Howell raised the prospect the Supreme Court may be asked to consider whether “the extraordinary pre-trial publicity surrounding these allegations … means that a fair trial of the allegations are simply not possible”.
“The prosecution of these allegations will take many, many years and will have many twists and turns,” he said.
The Commonwealth Director of Public Prosecutions opposed bail being granted. Barrister Simon Buchen, SC, appearing for the CDPP, said the application did not involve “wholly untested” allegations.
The charges were among “the most serious known to the criminal law”, Buchen said.
‘Gravely serious’ allegations
The “gravely serious” allegations involved Roberts-Smith killing or directing subordinates to kill unarmed detainees who were under the control of Australian forces.
Buchen said Roberts-Smith had made “advanced plans to relocate overseas” and it “appears from the evidence that consideration was being given to moving to various destinations overseas”.
The evidence suggested Roberts-Smith was “on the cusp of attempting to relocate overseas and that a decision had been made to withhold that information from the authorities with whom he had been in contact”, he said.
While the CDPP did not concede that conditional bail should be granted, Buchen said prosecutors did not dispute the contention by Roberts-Smith’s legal team that “sufficiently stringent bail conditions could ameliorate the risk of flight”.
However, he said the evidence suggested there was a “risk that the applicant will interfere with witnesses or evidence”. The CDPP was of the view this could not be ameliorated with bail conditions, but Grogin disagreed.
Buchen said the “key difference” between the defamation and criminal proceedings was “what is at stake” for Roberts-Smith, and the “consequences are of a more profound gravity altogether”.
Roberts-Smith seeks public funding
Roberts-Smith applied for funding from the Afghanistan Inquiry Legal Assistance Scheme to cover his criminal defence, but has not yet received approval.
The legal assistance scheme is administered by the Commonwealth Attorney-General’s Department. It provides financial assistance for reasonable legal representation and related costs, such as administration costs and travel, to eligible members or former members of the Defence Force.
Roberts-Smith was arrested at Sydney Airport last Tuesday after a joint investigation between the Office of the Special Investigator (OSI) and the Australian Federal Police (AFP).
Those eligible for funding from the scheme include current or former ADF members “charged with a crime in relation to matters that are the subject of the AFP or OSI Afghanistan investigation”.
Caps apply to the amount that may be recovered under the scheme. According to the most recent rates available publicly, dated September 2021, the maximum rate for a senior solicitor including a partner is $550 an hour up to a maximum daily rate of $3000 for six hours.
Roberts-Smith was charged last week with five counts of the Commonwealth offence of war crime – murder over the alleged killing of five unarmed detainees while he was on deployment in Afghanistan between 2009 and 2012. The offences must be tried before a jury, and carry a maximum penalty of life imprisonment.
Three of the five counts involve an allegation of aiding, abetting, counselling or procuring the offence of war crime – murder. In addition, he is charged with one count of war crime – murder, and one count of joint commission of war crime – murder.
Under the offence, the alleged perpetrator must cause the death of a person who was “neither taking an active part in the hostilities nor are members of an organised armed group”, when they knew or were reckless about the circumstances establishing that the person was not engaged in hostilities.
“Incidental” deaths that were not expected by the alleged perpetrator may not be caught by the offence.
with Riley Walter
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