Criminal charges laid against Australia’s most decorated living soldier, Ben Roberts-Smith, mark the beginning of a new and more perilous chapter in his years-long fight to clear his name of war crimes allegations.
The potential consequences of this battle have, until now, been reputational and financial, but he is now at risk of a jail sentence of life imprisonment if five counts of the war crime of murder are ultimately proven.
Corporal Ben Roberts-Smith VC looks at his Victoria Cross display at the Australian War Memorial in Canberra in 2011. (AAP: Alan Porritt)
The 47-year-old was expected to face court on Tuesday, but the case is listed to be mentioned for the first time before the Bail Division on Wednesday — a type of virtual court that operates via video links in NSW.
War crime allegations air for first time, launching legal battle
The allegations against the former Special Air Service Regiment (SASR) corporal became public when Nine newspapers published a series of reports in 2018 about several missions in Afghanistan.
After years of legal skirmishes, tens of millions of dollars in court costs and a Federal Court trial that lasted more than 100 days, the Victoria Cross recipient was left not with a vindicated reputation, but a damning civil ruling that he was a war criminal.
Justice Anthony Besanko found there was substantial truth, on the balance of probabilities, to allegations he was responsible for, or complicit in the deaths of four detainees in Afghanistan.
Now, a different threshold is in play with the higher standard of proof in criminal settings — beyond reasonable doubt.
Mr Roberts-Smith has consistently denied all wrongdoing, branding the allegations as egregious and spiteful.
He mounted an appeal which resulted in three Federal Court judges finding that the original decision was careful, clear and contained no legal errors.
It was only last September that the 47-year-old’s final avenue to overturn the defamation ruling was extinguished when the High Court refused to hear the case.
Arrest unfolds at domestic airport
As the defamation fight and its subsequent appeal bids were playing out, the Office of the Special Investigator and AFP began a complex joint investigation.
When Mr Roberts-Smith flew to Sydney from Brisbane on Tuesday, authorities were waiting.
In footage from the airport released by the AFP, the former corporal’s face was blurred as he walked alongside investigators, but his towering stature and tattoos were unmistakable.
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It remains unclear how much crossover there will be between what the defamation trial heard and the brief of evidence in the criminal case.
Deaths of Afghan nationals between 2009 and 2012 spark complex probe
AFP Commissioner Krissy Barrett said the defendant is accused of involvement in the deaths of Afghan nationals between 2009 and 2012 in circumstances that constituted war crimes under the Commonwealth Criminal Code.
It will be alleged the victims were detained, unarmed, not taking part in hostilities and under the control of ADF members when they were killed.
“It will be alleged the victims were shot by the accused or shot by subordinate members of the ADF in the presence of and acting on the orders of the accused,” she told reporters on Tuesday.
Krissy Barrett said the investigation was “meticulous and thorough”. (ABC News: Ian Cutmore)
The commissioner described the investigation as complex, thorough and meticulous.
But she would not be drawn on any details including the defendant’s reaction when he met authorities at the airport.
Instead, she had a message for the wider defence community.
“The alleged conduct related to these charges is confined to a very small section of our trusted and respected ADF,” Commissioner Barrett said.
The overwhelming majority of ADF members “do our country proud”, she added, and serve with honour and distinction.
She urged a rallying behind the ADF and encouraging a mindfulness for the families of loved ones who died in the line of duty.
The charges are only the second time such a joint investigation have resulted in criminal charges against an ADF member
OSI Director of Investigations Ross Barnett said the charges were a “significant step” underpinned by careful and professional investigative work.
Asked why charges were laid at this point in time, he would only say that there were “a number of operational considerations” that factored into planning.
Mr Roberts-Smith faces a maximum penalty of life imprisonment if he is charged and convicted over the alleged offences. (AAP: Dean Lewins )
An investigation spanning 9,000 kilometres
The investigation is one of more than 50 investigations involving alleged war crimes in Afghanistan, 39 of which have been finalised.
Mr Barnett said these kinds of investigations are complex because they are not conventional but involve allegations stemming from a war zone some 9,000km  from Australia, which is no longer accessible.
Investigators also face challenges including lack of access to a crime scene, photographs, measurements, projectiles, or even post-mortems, he said.
Mr Roberts-Smith’s first court appearance, before a judge of the NSW Local Court, marks the beginning of what is likely to become a years-long judicial process.