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.
The AFP Under Commissioner Krissy Barrett Turned The Arrest Of A Victoria Cross Recipient Into A Public Spectacle
The backlash from inside the AFP, from political leaders, and from the public has been swift and devastating.
The AFP Staged The Arrest For Media Consumption
The AFP did not just arrest Ben Roberts-Smith. They filmed it. They distributed it. They turned a solemn legal process into a reality TV show.
The AFP and the Office of the Special Investigator put out a joint media release noting that “Arrest vision is available via Hightail” — a portal for sharing video — after which they issued another media release saying “Images of the arrest and the press conference are available via Hightail”, in case anyone missed the first cry for attention.
Soon afterwards the footage was everywhere — across media and social media. All supplied by the Office of the Special Investigator and released by the AFP. This wasn’t simply an arrest witnessed by bystanders and captured by the media. It was staged in a public place and distributed by the state.
The camera operator was from the Office of the Special Investigator and the AFP. The footage was not shot by a TV news outlet.
AFP Officers Are Furious — They Call It Grandstanding
Inside the AFP, serving officers are privately questioning why their organisation arranged for a videographer to record the dramatic arrest and then distribute the vision to news organisations.
“There was no reason to film that arrest apart from grandstanding — it’s not like it is crucial evidence,” one long serving AFP investigator told The Nightly, speaking on the condition of anonymity because of fear of professional retribution.
“The arresting officers could certainly have placed him on an Interpol alert list if they were worried about him fleeing the country, and if they had checked the flight manifest it would have been easy to see he was travelling with his daughters.”
“This is a serious misstep by Commissioner Barrett, and I imagine she is now having second thoughts about the way this has been handled and put in full public glare.”
The Nightly has also seen several derogatory messages and images being shared between AFP members criticising the Commissioner’s press conference after Tuesday’s arrest and mocking the number of medals she has worn on her uniform. One image circulated widely among AFP members shows Commissioner Barrett displaying at least 10 medals earned during her twenty-five-year career, compared to Ben Roberts-Smith wearing half as many decorations following his Afghanistan service.
A Commissioner who has never seen combat wearing more medals than a Victoria Cross recipient who fought in Afghanistan. The irony is staggering.
The Facts Of The Arrest
Roberts-Smith, 47, was arrested at Sydney Airport on Tuesday April 7 2026 as part of Operation Emerald-Argon — a joint investigation between the AFP and the Office of the Special Investigator.
He was charged with five counts of war crime murder under section 268.70(1) of the Criminal Code Act 1995 — three charges of aiding, abetting, counselling or procuring an offence, one charge of actual offence and one charge of joint commission — each carrying a maximum sentence of life imprisonment. The charges relate to the alleged deaths of Afghan nationals between 2009 and 2012.
He was remanded to Silverwater Correctional Complex. His legal counsel declined to apply for bail at the initial hearing on April 8. Bail was subsequently granted on April 17 subject to strict conditions and a $250,000 surety. Roberts-Smith issued a public statement on April 19 2026 denying all allegations. He is next due in court June 5 2026 for a status hearing.
The AFP’s Flight Risk Claim Was Rejected By The Court
The AFP claimed they arrested him at the airport because he was a flight risk. His lawyers had offered in writing to make him available “at any place, at any time” to be arrested. The AFP declined to respond to that offer.
They could have placed him on an Interpol alert list. They could have arrested him quietly at his home. They chose the airport — with a camera crew ready.
When bail was contested the judge granted it subject to conditions including surety, passport surrender, travel restrictions and witness contact prohibition. The court found those conditions sufficient to mitigate any flight risk. This is a significant blow to the AFP’s credibility. They staged a public spectacle claiming he might flee. The court did not agree.
Roberts-Smith was travelling with his twin teenage daughters and his girlfriend Sarah Matulin. The AFP knew he was travelling with his children. They chose to arrest him anyway. In front of them. At Easter. Before Anzac Day.
This is not justice. This is cruelty.
The Witnesses: Admitted Killers Given Immunity, Suppressed Names, Mental Health Hidden
The foundation of the prosecution against Ben Roberts-Smith rests on four witnesses. Before examining their testimony, Australians need to understand exactly who these witnesses are and what deal they received to secure their cooperation.
Four SAS soldiers who by their own written admissions participated in the execution of detainees in Afghanistan have been granted complete immunity from prosecution. The Federal Director of Public Prosecutions confirmed at the bail hearing that each of these witnesses “has admitted their personal involvement in executing one or more detainees.” They admitted killing. They walk free. The man they accuse faces life imprisonment.
Their names are suppressed. Hidden behind pseudonyms — Person 4, Person 14, Person 18, Person 41. The Australian public cannot know who they are, cannot assess their backgrounds, cannot examine their histories, cannot scrutinise their motives. Anonymous. Immune. And potentially deadly to Ben Roberts-Smith’s freedom.
The primary witness — Person Four — is a former SAS sergeant who was medically discharged from the Australian Defence Force in 2021. He suffers from mental impairment, memory loss, ruminating thoughts and flashbacks. He is on medications for multiple mental health conditions. The specific details of those conditions and those medications were suppressed by the court. A witness whose reliability cannot be fully assessed because the very information needed to assess it has been hidden from public scrutiny.
He admitted under cross-examination that he experiences memory loss. “I think the minutia of things was fading away,” he told the court. He was questioned about whether he experienced hallucinations, heard things that were not real, worried someone was trying to harm him. He denied those specific suggestions — but the questioning itself reveals the depth of concern Roberts-Smith’s legal team had about his mental state.
Most significantly Person Four himself testified that he believed he did “as much as” Roberts-Smith during the 2010 Battle of Tizak — the very action for which Roberts-Smith received the Victoria Cross. He felt hurt he did not receive the same recognition. He admitted feeling manipulated by soldiers who passionately wanted to bring Roberts-Smith down. A fellow witness — Person 18 — told the court he believed Person Four was more deserving of the Victoria Cross than Roberts-Smith.
A key prosecution witness who believed he deserved the Victoria Cross his target received. Who felt hurt he didn’t get it. Who admitted being manipulated by soldiers who wanted to destroy Roberts-Smith. Who admitted killings himself for which he received immunity. Whose mental health conditions and medications were hidden from public scrutiny. Who spent time in a mental health facility during the proceedings.
Roberts-Smith’s barrister described what drove this prosecution from the beginning — the “corrosive jealousy” of erstwhile comrades. Person Four’s own testimony, his own admissions, his own emotional state validate that description completely.
Person 14 — another suppressed-identity witness — spent four days under cross-examination being accused of lying and fabricating. He denied jealousy of Roberts-Smith’s medals. He denied wanting to throw him “under a bus.” He denied being a source for journalists who had been reporting the allegations for years before any formal proceedings began.
And yet these are the men — anonymous, immune from prosecution for admitted killings, some carrying undisclosed mental health conditions and medications — upon whose testimony the prosecution of Australia’s most decorated living soldier rests.
The question every Australian must ask is this: if these men participated in killings as they have admitted in writing — why are they free? Why is their immunity more important than their accountability? And why is the man they accuse — who has never admitted anything and who denies everything — the one facing life imprisonment?
The answer the prosecution gives is that Roberts-Smith directed the killings. That without his orders the killings would not have occurred.
Roberts-Smith says none of it happened as described. That the men who claim to have witnessed it are motivated by jealousy, manipulation and the corrosive resentment of men who believed they deserved his medal and never forgave him for receiving it.
A jury will ultimately decide. But Australians deserve to know the full picture of who is making the accusations, what they received in exchange for making them, and what mental and emotional state they carried into the witness box. They have been denied that information. The suppressions, the immunities and the pseudonyms have ensured it.
That is not justice. That is a system protecting its witnesses while exposing its defendant.
The Brereton Inquiry And Senior Commander Accountability
The Brereton inquiry explicitly cleared senior commanders of personal responsibility for the war crimes. This has been a source of intense anger throughout the veteran community.
The independent oversight panel for the inquiry formally disagreed with Brereton’s finding, stating that commanders needed to accept “organisational responsibility and accountability.”
The panel explicitly warned that there is “ongoing anger and bitter resentment” among special forces members “that their senior officers have not publicly accepted some responsibility for policies or decisions that contributed to the misconduct.”
The panel criticised Defence leadership for a lack of “operational or risk adjusted curiosity” stating that “multiple signs” of trouble were ignored that could have stopped the alleged conduct much sooner.
Defence Minister Richard Marles announced that senior defence commanders would lose their distinguished service medals as a form of accountability for the “unchecked warrior culture” that developed under their watch.
The critical questions nobody has satisfactorily answered: if the alleged conduct was occurring for years across multiple deployments, why was it not detected by more senior officers? Why were gallantry awards — including the Victoria Cross — bestowed on someone allegedly involved in war crimes if commanding officers had any knowledge or suspicion? And why are junior soldiers facing criminal charges while senior commanders face nothing more than the loss of medals?
The $300 Million Question
The government has spent over $300 million investigating SAS veterans. That figure — confirmed publicly by Gina Rinehart among others — represents one of the most expensive criminal investigations in Australian history. The investigation has resulted in charges against two individuals.
Two people charged. Three hundred million dollars spent. Anonymous witnesses given immunity for admitted killings. And a Commissioner who deployed a camera crew to Sydney Airport to film the arrest for distribution via Hightail.
At what point does expenditure of this magnitude — against this prosecutorial outcome — constitute a grotesque misuse of Australian taxpayer funds?
Political Leaders Have Spoken Out
Tony Abbott, former Prime Minister: “After doing their best to serve our country, dozens of former special forces soldiers should not still be in limbo years later because of ongoing investigations that have only resulted in charges in two cases.” “It was wrong to judge the actions of men in mortal combat by the standards of ordinary civilian life.” “If Ben Roberts-Smith transgressed, why wasn’t this picked up prior to his gallantry awards and why wasn’t any culture of brutality towards prisoners detected by his more senior officers, and dealt with quickly, rather than being allowed to fester, as has been alleged, for over a decade?”
Pauline Hanson, One Nation Leader: “I remain steadfast in my support of Ben Roberts-Smith despite news of his arrest today.” “Ben was disgracefully arrested in front of his twin 15-year-old girls.”
Gina Rinehart, Australia’s richest person: “I don’t understand how it can be justified to spend more than $300 million to try for years to bring SAS veterans, who have served our country, towards criminal proceedings, and most recently the arrest of Ben.”
Elon Musk, on X: Called the prosecution “insane.”
Heston Russell, former Commando and Special Forces combat veteran: “They waited for him to return from a flight at Sydney airport in public after the Easter long weekend with his two twin teenage daughters. I’m just disgusted by that as an Australian citizen and it really makes me wonder — what is the motive here, why are we pushing for drama?”
A petition to free Ben Roberts-Smith gained more than 10,000 signatures in 24 hours.
The Double Standard
The Albanese government has spent over $300 million investigating SAS veterans. It deployed a videographer to film an arrest at Sydney Airport and distributed the footage via Hightail. It has said almost nothing about the treatment of Australia’s most decorated living soldier arrested in front of his teenage daughters at Easter.
This is the same government that brought Julian Assange home but let David McBride — the whistleblower who exposed war crimes — rot in prison. David McBride is imprisoned. Ben Roberts-Smith, the decorated soldier accused of them, was paraded through Sydney Airport for the cameras.
The AFP that filmed Roberts-Smith’s arrest has not filmed the arrest of a single IRGC operative operating on Australian soil. The government that funded a $300 million investigation into SAS veterans has not funded the investigation of Chinese intelligence operations embedded in Australian infrastructure.
The priorities are clear. The hypocrisy is undeniable.
The Attorney-General And Prime Minister — Critical Questions
AFP Commissioner Krissy Barrett was appointed by Anthony Albanese. She is his Commissioner. The AFP operates within the Attorney-General’s portfolio. Attorney-General Michelle Rowland signed the warrant authorising the arrest. She would have known this was a high-profile case. She would have been briefed that an arrest was imminent.
The question that demands an answer is not whether the Attorney-General signed the warrant. The question is what she knew about how the arrest would be executed — in a public airport, in front of twin teenage daughters, with a camera crew distributing footage via Hightail to every media organisation in the country.
If she did not know about the media spectacle she should have. If she did know she should have stopped it. Her silence since the arrest speaks volumes.
Albanese has repeatedly refused to comment, hiding behind “it’s before the courts” — the same Prime Minister who comments freely on Palestine, Israel, Ukraine and Iran. On the treatment of Australia’s most decorated living soldier arrested in front of his daughters at Easter? Silence.
No senior ALP figure has spoken out. A Labor MP Luke Gosling privately warned his colleagues against making public comments on the case. When a government instructs its members to stay silent on something this consequential, that silence is not restraint. It is a directive.
The Chain Of Responsibility
Krissy Barrett as AFP Commissioner ordered the tactical execution of the arrest and approved the media spectacle.
Michelle Rowland as Attorney-General signed the warrant, oversees the AFP and has said nothing.
Anthony Albanese as Prime Minister appointed Barrett, retained Rowland and has said nothing.
The buck stops with Albanese. He appointed the Commissioner who presided over this disgrace. He has not condemned the AFP’s tactics. He has not apologised to Roberts-Smith or his daughters. He will not.
The Questions That Must Be Answered
• What did Attorney-General Michelle Rowland know about how the arrest would be executed before she signed the warrant?
• Did she approve the media spectacle? If not why did she not stop it?
• Why has the government been completely silent since the arrest?
• Did Albanese instruct ALP members not to comment? If not why has no senior Labor figure spoken out?
• Why were four men who admit participating in executions given complete immunity from prosecution?
• Why are the mental health conditions and medications of a primary witness suppressed from public scrutiny when that witness is providing evidence that could send a man to prison for life?
• Why did the AFP not respond to the written offer from Roberts-Smith’s lawyers to make him available for arrest “at any place, at any time”?
• Who authorised the camera crew? Who approved distribution via Hightail? Was the Attorney-General consulted before that decision was made?
These questions deserve answers. The government is refusing to give them.
Conclusion
Ben Roberts-Smith may ultimately be convicted. He may ultimately be acquitted. That is for a court and a jury to determine after a fair trial.
But the manner of his arrest — filmed, distributed, staged for maximum media impact, executed in front of his teenage daughters at a public airport at Easter — was not justice. It was theatre. Expensive, cruel, politically convenient theatre.
The witnesses upon whose testimony his prosecution rests are men who admit killing, who received immunity for that admission, whose names are hidden, and whose mental health and medications are suppressed.
One of the primary witnesses admitted feeling hurt he did not receive the Victoria Cross that Roberts-Smith received. Admitted being manipulated by soldiers who hated Roberts-Smith and wanted to destroy him. And received immunity for admitting his own participation in the very conduct at the heart of this prosecution.
Australia’s most decorated living soldier deserved better. His daughters deserved better.
The AFP deserved better leadership than a Commissioner who turned a legal process into a reality television production.
And the Australian people deserve a Prime Minister and an Attorney-General willing to answer for the conduct of the agencies operating in their name.
They are getting silence instead.
That silence is its own answer.
Three hundred million dollars. Anonymous witnesses. Immunity for admitted killers. Suppressed medications. Corrosive jealousy.
A camera crew at Sydney Airport. Twin teenage daughters watching their father arrested at Easter.
This is what $300 million of Australian taxpayer money purchased. Australia deserves better.
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.