SAS hero Ben Roberts-Smith has been released on bail with strict conditions more than a week after his controversial arrest and war crimes charges.
Australia’s most decorated living soldier, 47, appeared by audio-visual link from Silverwater’s Metropolitan Remand and Reception Centre in front of Magistrate Greg Grogin in Sydney’s Downing Centre Local Court on Friday for a bail hearing.
Roberts-Smith faces life imprisonment if found guilty of five “war crimes – murder” charges over alleged incidents in 2009 and 2012 in Afghanistan, where prosecutors allege he either executed non-combatants or ordered his subordinates to do so.
Magistrate Grogin found that a set of almost 20 bail conditions would ameliorate any risk that Roberts-Smith would leave the country or interfere with witnesses or evidence, and said he expected the case to take years to get to trial.
The former Special Air Service Regiment corporal will be required to report to police three times a week, surrender his passport, only use one phone, not use encrypted devices or apps, not contact or approach prosecution witnesses, and provide a surety of $250,000 to be forfeited if he breaches bail, the Sydney Morning Herald reported.
Roberts-Smith’s barrister Slade Howell submitted his client should be released, citing the prospect of lengthy delays in the case, his clean criminal history and willingness to accept strict conditions and offer a surety, and called flight risk concerns “fanciful”.
He also asked the court to consider whether a fair trial of the Victoria Cross recipient would be possible given the “extraordinary pre-trial publicity”, and said his client would struggle to defend himself from custody due to the national security classification of evidence.
But barrister for the Commonwealth Director of Public Prosecutions Simon Buchen SC told the court Roberts-Smith was a flight risk as he had allegedly made plans to relocate overseas, and alleged he had withheld that information from authorities.
Mr Buchen further argued that Roberts-Smith was an unacceptable risk of interfering with evidence, alleging evidence from his defamation trial demonstrated a “willingness to subvert court processes”.
“The examples include threatening or discouraging potential witnesses through third parties, colluding with potential witnesses, destroying evidence. And using burner phones or encrypted communications to evade law enforcement attention,” he told the court.
Roberts-Smith was first accused of war crimes by by journalists from corporate media giant Nine Entertainment in 2017. They were aided by Liberal MP Andrew Hastie, who gave evidence against his former SASR comrade during his defamation trial.
In 2023 he lost his lawsuit against Fairfax Media and journalists Nick McKenzie, Chris Masters and David Wroe after the Federal Court found allegations against him were “substantially true” on the balance of probabilities – a lower threshold than the “beyond reasonable doubt” required in a criminal trial. He then lost an appeal, and had an application to appeal again to the High Court rejected last year.
Earlier this year it was revealed that Nine paid $700,000 in hush money to Roberts-Smith’s mistress in a secret settlement after she threatened to sue over allegations McKenzie had broken a promise not to subpoena her to give evidence or reveal her as a source in the trial.
Roberts-Smith was then arrested on April 7 in front of his family after arriving in Sydney on a flight from Brisbane and was refused police bail.
He will face court again on June 4.
Header image: Left, right, Ben Roberts-Smith (ADF).
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