Prosecution Claims Ben Roberts-Smith Was Preparing to Flee Australia Before Arrest

A Sydney court heard on Friday that former SAS corporal Ben Roberts-Smith was on the cusp of relocating overseas and had withheld this information from authorities prior to his arrest. The revelation came during a bail application for the decorated soldier, who faces five charges of war crime murder. Roberts-Smith has been held at Silverwater remand prison since his arrest at a domestic airport terminal on April 7.

The Details

Prosecutor Simon Buchen SC informed the Downing Centre Local Court that Roberts-Smith had made advanced plans to move to various overseas destinations. Buchen argued that a decision had been made to intentionally withhold these plans from the authorities with whom the accused was in contact. The prosecution contends that these actions demonstrate a significant risk that Roberts-Smith would attempt to flee the jurisdiction to avoid trial if granted bail.

Beyond the flight risk, Buchen argued that there is a substantial danger that Roberts-Smith would attempt to interfere with witnesses and evidence. The prosecution highlighted the potential use of burner phones, witness intimidation, and collusion, asserting that these risks could not be effectively mitigated by standard bail conditions.

In response, defence lawyer Slade Howell argued that exceptional circumstances justify Roberts-Smith's release. Howell stated that the sheer size and complexity of the case, combined with national security concerns, will cause significant delays. He further claimed that Roberts-Smith cannot adequately prepare his defence from prison due to the strict requirements for accessing classified material.

Howell countered the flight risk argument by noting that Roberts-Smith possesses no passport and had previously offered to surrender to authorities by appointment. Additionally, Roberts-Smith's father, a former judge, has offered a substantial surety to guarantee his appearance in court.

During the hearing, Roberts-Smith appeared via video link from Silverwater prison, dressed in a green prison-issue tracksuit. He spoke only briefly to confirm his ability to see and hear the proceedings. His parents were present in the front row of the courtroom, and he is being represented by solicitor Karen Espiner.

Context

Ben Roberts-Smith, a former SAS corporal, was once celebrated as a national hero, receiving the Victoria Cross for 'most conspicuous gallantry' during the 2010 battle of Tizak. He also served as the chair of the government's Australia Day council and was named father of the year. However, his reputation was severely damaged following a series of reports in 2017 and 2018 alleging that he engaged in war crimes, including the murder of unarmed civilians during 'blooding' incidents in Afghanistan.

In June 2023, Roberts-Smith lost a high-profile defamation case against The Age, the Sydney Morning Herald, and the Canberra Times. The Federal Court found on the balance of probabilities that he had committed four murders of unarmed civilians and bullied his comrades. This civil ruling saw media billionaire Kerry Stokes ordered to pay $13.5 million in legal costs.

The current criminal charges relate to five counts of war crime murder across three separate incidents between April 2009 and October 2012. These include deaths at Kakarak in Uruzgan province, Darwan, and Syahchow. AFP Commissioner Krissy Barrett has stated that the alleged victims were unarmed, detained, and under the control of ADF members when they were killed.

What's Next

Judge Greg Grogin has adjourned the hearing until midday to consider his ruling on the bail application. Because the charges are 'show-cause' offences, the burden of proof lies with Roberts-Smith to demonstrate why his continued detention is not justified.

Regardless of the bail outcome, the upcoming criminal trial will face a higher burden of proof than the previous defamation suit, requiring a unanimous jury verdict based on evidence 'beyond reasonable doubt.' Defence lawyer Slade Howell has already signaled that the legal team may argue that a fair trial is impossible due to the extraordinary amount of pre-trial publicity surrounding the case over the last decade.