Andrew L. Urban
The trial of Victoria Cross recipient Ben Roberts-Smith for five war crime murders will be one of the most consequential criminal trials in Australian history. Under all the circumstances, including time elapsed, limited evidence and unpreserved crime scenes in a foreign, antagonistic country, can the prosecution mount compelling evidence that dispels reasonable doubt? Add the damning 2023 defamation trial that found him guilty of war crimes on the balance of probabilities, can this criminal trial really be fair? And did the validation process for his VC fail?
Starting with his 7/4/26 Sydney airport arrest returning from Brisbane, unnecessarily in front of his two teenage daughters, the management of this final phase of bringing charges against Ben Roberts-Smith was a prejudicial process. This bad start was followed by a media conference by Australian Federal Police Commissioner Krissy Barrett and Ross Barnett of the Office of the Special Investigator, which simply presented the five charges followed by questions but no answers. (Frustrating for the public; why take questions?) But what lies ahead in court will demand answers.
The Victoria Cross for Australia is awarded through a structured validation process that ensures the integrity and significance of the award. Did it somehow fail?
The imperative matter of finding an open minded 12-member jury will present a massive hurdle, given the many years that this has been aired in the public square and in the civil court. How can Roberts-Smith overcome the inherent prejudice of the civil trial, where he sued Nine Entertainment for defamation but was found guilty as reported.
How can he overcome the profound prejudice created by ADF Chief Angus Campbell’s 2020 public apology to the people of Afghanistan for any wrongdoing by Australian soldiers in the wake of the Afghanistan war crimes report. He expressed regret for the actions of some members of the Australian Defence Force that caused pain and suffering to Afghan families and communities. Then Prime Minister Scott Morrison didn’t actually apologise but conveyed “deepest sorrow” to Afghan President Ashraf Ghani. Noble, compassionate, but also prejudicial.
Roberts-Smith would perhaps prefer the trial to be in front of a judge alone, but that option is not available to him. The barrier comes from Section 80 of the Australian Constitution, which guarantees trial by jury for indictable offences against Commonwealth law. He is not applying for bail, perhaps waiting till his June 4 appearance, when he will probably have a stronger case, it is thought.
The five war-crime murder charges against Ben Roberts-Smith arise from separate incidents in Afghanistan between 2009 and 2012 during his service with the Special Air Service Regiment (SAS). They are alleged to involve five Afghan men who were unarmed and under control of Australian forces when they were killed.
THE CHARGES
- The “Darwan cliff” killing (Uruzgan Province, 2012)
This is the most widely reported allegation and was one of the incidents examined in the civil defamation case.
Allegation:
During a patrol in the village of Darwan, Roberts-Smith allegedly kicked the handcuffed detainee off a cliff.
After the man fell to the bottom of the ravine, Roberts-Smith allegedly ordered or directed soldiers to shoot him, resulting in his death.
Legal charge:
Murder of a person who was detained and hors de combat (no longer participating in hostilities).
2. Killing of a disabled man with a prosthetic leg (Uruzgan Province, 2009)
Allegation:
Roberts-Smith allegedly machine-gunned an Afghan man who had a prosthetic leg during a raid.
The man was allegedly unarmed and not posing a threat.
After the killing, soldiers allegedly took the prosthetic leg as a trophy and later drank beer from it at a bar.
- Execution of a handcuffed prisoner (Kakarak region, 2009)
Allegation:
A detained Afghan male was allegedly executed while in custody.
Roberts-Smith is alleged to have killed the detainee or directed another soldier to do so.
This count may involve aiding, abetting, counselling or procuring murder, rather than personally firing the fatal shot.
- Killing at the compound known as “Whiskey 108” (Uruzgan Province, 2012)
Allegation:
Two Afghan men captured at a compound were allegedly unarmed prisoners. They were allegedly shot dead after being taken into custody.
One allegation is that Roberts-Smith personally killed one prisoner, and directed another soldier to kill the second.
These allegations are sometimes linked to the practice described as “blooding”, where junior soldiers were allegedly encouraged to make their first kill.
- A further alleged murder during the same operational period (Uruzgan Province, 2012)
The fifth charge relates to the death of another Afghan civilian or detainee during operations in Uruzgan Province.
The prosecution case alleges Roberts-Smith either directly killed the person, or procured or participated jointly in the killing.
Summary:
One count of direct murder
One count of joint commission
Three counts of aiding, abetting, counselling or procuring murder.
Each carries a maximum penalty of life imprisonment.
CHALLENGES FOR A FAIR TRIAL
Presenting comprehensive and detailed evidence in a criminal prosecution of Ben Roberts-Smith (BRS) for alleged war-crime murders would face a number of legal, practical, and evidentiary challenges that will need to overcome all reasonable doubt.
The single biggest difficulty for the prosecution in this case is a structural issue involving SAS patrol dynamics and witness reliability that has affected many war-crimes prosecutions internationally. War crimes prosecutions frequently rely more on witness testimony than forensic evidence because of these conditions. A prosecution would depend heavily on fellow soldiers who were present.
Crime scene and physical evidence problems include absence or degradation of forensic evidence. The alleged killings occurred in combat zones years earlier (2009–2012).
Crime scenes were not preserved, as military operations moved on immediately. Bodies may have been buried, removed, or decomposed. Physical evidence (ballistics, DNA, weapons) may well be impossible to recover or link definitively.
Other challenges include: Memory deterioration over time, group loyalty and military culture discouraging testimony against comrades. potential self-incrimination by witnesses who participated in or knew of the acts. Some evidence would likely come from Afghan villagers or relatives of victims – if they can be located … and trusted.
Evidence about special forces operations may be classified and the government may need to invoke public interest immunity, meaning some material cannot be disclosed.
The prosecution would need to prove the deaths occurred, they were unlawful, the accused personally committed them or was responsible.
In combat this is complicated because multiple soldiers may fire weapons, orders may be unclear and events occur quickly under battlefield stress.
Deep divisions, dark secrets: Ben Roberts-Smith trial to test allegiances
OPINION: PROS AND CONS OF PROSECUTION
Are you sitting comfortably? Armchair experts all, including me. Far from the war zone, both in place and time, making judgement calls is silly, futile and delusional.
The one thing pretty well everyone agrees is that prosecuting charges of war crimes is the right thing to do in a country that professes to live by the rule of law.
A fair trial (a big IF) with an unbiased jury (big IF2) would bring finality to the allegations against BRS. If he were found not guilty, it would also relieve the depressing cloud over the SAS specifically and the defence forces in general. The verdict would also condemn the process that has taken so long as to make the delayed justice a denial of justice.
A fair trial in which BRS were found guilty would extend the agitation, not least because BRS would almost certainly appeal. The trial is expected to be held next year. Any appeal would add a further year to its history. That would extend the delay / deny status.
So the most reasonable view, I believe, is to welcome the trial with the caveats that a) an unbiased jury of 12 be identified and b) the prosecution provide a watertight case against him, beyond reasonable doubt. That may be a bridge too far for all five charges – but even one guilty verdict would be enough to risk life in prison – and a convulsion in public discourse.
There is no such thing as a fair trial in this country it is full of corruption
Andrew, your piece nails the massive hurdles facing this prosecution.
The faded evidence, the passage of time, the civil defamation findings and the ADF’s own public statements that have already shaped public opinion. I won’t rehash those; they stand on their own. But one point does deserve sharper focus, because it goes to the heart of whether this trial can ever be truly fair: if these are alleged war crimes committed in combat by one of Australia’s most decorated soldiers, shouldn’t Ben Roberts-Smith be entitled to a trial by his peers?
I suggest that his peers are not 12 randomly selected civilians drawn from the electoral roll. His peers are serving or former military personnel men and women with the training, discipline and lived experience of special forces operations in Afghanistan. They understand the fog of war, the split-second decisions, the rules of engagement, and the bonds of patrol loyalty that civilian life rarely replicates. Critics will argue this introduces bias. But the counterpoint is unavoidable: is a civilian jury, exposed to years of sustained media coverage and prior civil findings on the balance of probabilities, inherently better placed to assess combat conduct beyond reasonable doubt?¹
A civilian jury necessarily brings a wide range of backgrounds, abilities and preconceptions. That is both its strength and its weakness. But in a case grounded in battlefield decision making, the absence of lived operational context is not a neutral factor. Roberts-Smith Australia’s most decorated living soldier will be judged not by those closest to his professional experience, but by those farthest removed from it.
This tension is not unique to Australia. In the United States, service members are routinely tried by court-martial under the Uniform Code of Military Justice. The Uniform Code of Military Justice, where panels of military personnel determine guilt alongside a military judge.² In the United Kingdom, courts martial similarly include a civilian judge advocate and a board of serving officers and warrant officers who decide guilt or innocence.³ In Canada, military panels function as the equivalent of a jury and are composed of serving members, sometimes restricted by rank relative to the accused.⁴
These systems exist for a reason: they recognise that military conduct, particularly in combat, raises issues of context, training and command structure that differ fundamentally from civilian life. However, they also draw a distinction. The most serious offences particularly those prosecuted as war crimes under domestic criminal law may be brought in civilian courts, reflecting the gravity and international character of such allegations.
Australia sits firmly in that latter category. War crimes under Division 268 of the Criminal Code (Cth) are indictable Commonwealth offences. Section 80 of the Constitution requires that such offences be tried by jury.⁵ Unlike the United States Constitution, which expressly allows exceptions for cases arising in the armed forces, Australia’s Constitution contains no such carve-out.⁶ The result is a rigid framework: once prosecuted as Commonwealth offences, these matters must be determined by a civilian jury, regardless of their operational context.
Even within Australia’s military justice system, the distinction between disciplinary offences and criminal offences has long been recognised. The case of Re Civilian Casualty Court Martial illustrates both the reach and the limits of military jurisdiction. While the matter involved the deaths of civilians during an operation, the charges were brought under the Defence Force Discipline Act and ultimately failed as being legally misconceived.⁷ It did not involve prosecution under Division 268, reinforcing the structural divide between military discipline and criminal war crimes prosecution.
The delay itself compounds the problem. The Inspector-General of the ADF Afghanistan Inquiry (the Brereton Report, November 2020) identified “credible information” of 39 unlawful killings involving Australian special forces personnel.⁸
What has followed is a protracted investigative process involving the Office of the Special Investigator and the Australian Federal Police, now extending over several years. Public reporting has consistently pointed to the inherent difficulties: degraded or non-existent forensic environments, reliance on witness testimony from conflict zones, classification barriers, and the practical impossibility of reconstructing crime scenes years after the fact.⁹
None of this is evidence of bad faith. It is the reality of attempting to apply peacetime criminal standards to wartime conduct in a foreign theatre long after the event. But it raises a legitimate question: at what point does delay, however justified, begin to erode the fairness it seeks to protect?
The optics of arrest and public communication also matter. High-profile investigative steps accompanied by media briefings are not unusual in complex cases. But where proceedings are yet to be tested in court, the line between informing the public and shaping perception becomes increasingly thin. The risk is not procedural unfairness in the strict legal sense, but something more intangible the gradual formation of a narrative before the evidence is fully ventilated.
None of this diminishes the gravity of war crimes allegations or the necessity of accountability. If the evidence meets the criminal standard of proof beyond reasonable doubt, then the rule of law must take its course.
But we should not ignore the structural tension at the heart of this case. Other comparable legal systems deliberately incorporate military experience into the fact-finding process, even while preserving judicial oversight. Australia, by constitutional design, does not. That is not a failing of the courts. It is a feature of the system.
The question is whether that feature is fit for purpose when judging split-second decisions made in combat zones thousands of kilometres away. Australia’s most decorated living soldier now stands to be judged by those with no direct experience of that reality. The law demands that process. Whether it delivers justice in this context is a question that deserves to be asked before the verdict, not after it.
FOOTNOTES Federal Court of Australia, Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 (civil standard: balance of probabilities).
1. United States military justice system operates under the Uniform Code of Military Justice; courts-martial routinely try service members for serious offences including homicide: see overview
2. United Kingdom Court Martial system includes a civilian judge advocate and a military board determining guilt.
3. Canadian military justice system includes panels of serving members acting as the trier of fact in courts martial.
4. Australian Constitution s 80; see parliamentary analysis confirming jury requirement for indictable Commonwealth offences.
5. Contrast with United States Constitution, Fifth Amendment exception for “cases arising in the land or naval forces”.
6. Re Civilian Casualty Court Martial (2011) 259 FLR 208; charges under DFDA dismissed as legally flawed; not a Division 268 prosecution.
7. Inspector-General of the ADF Afghanistan Inquiry (Brereton Report), November 2020 (public version).
8. Reporting and academic commentary on investigative constraints in Afghanistan war crimes inquiries (including absence of preserved crime scenes and reliance on witness testimony in conflict environments); see also general discussion of military jurisdiction challenges.
9. Reporting and academic commentary on investigative constraints in Afghanistan war crimes inquiries (including absence of preserved crime scenes and reliance on witness testimony in conflict environments); see also general discussion of military jurisdiction challenges.
Yes, good point…the jury will be required to make findings of fact from testimony that excludes the full context of events. And truth is context… I fear there is no satisfactory way out of this debacle.