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.