War veteran Ben Roberts-Smith has been granted bail after spending more than a week in custody over allegations of war crimes.
The 47-year-old was arrested at Sydney Domestic Airport last week and charged with five counts of the war crime of murder, alleged to have occurred in Afghanistan in 2009 and 2012.
His lawyers have told a Sydney court on Friday the case was unprecedented and involved “uncharted legal territory”, arguing it was likely to take years, with “many twists and turns”.
They said the fairness of the proceedings would be compromised if their client had to defend himself from custody.
Mr Roberts-Smith was arrested on a flight arriving from Brisbane at Sydney Airport. (Supplied: Australian Federal Police)
In opposing bail, the Crown highlighted the “gravely serious” nature of the charges, citing the risk of flight and the risk of Mr Roberts-Smith interfering with witnesses or evidence.
Fair trial may be ‘simply not possible’
Slade Howell, representing Mr Roberts-Smith, argued it was likely a superior court or courts may need to consider how the “extraordinary” pre-trial publicity about the allegations may impact the proceedings.
That publicity had “persisted for many years and still persists”, he said, and a superior may need to consider whether it meant a fair trial of the allegations was “simply not possible”.
Mr Howell said the fairness of the proceedings would be “compromised” if Mr Roberts-Smith had to defend himself from custody.
Although it is not clear how long the trial would take, the defence lawyer referenced the case of former SAS soldier, Oliver Schulz, who was charged with the offence of war crime murder in 2023 and is awaiting trial.
“The other matter that was in the court for three years before it was committed for trial,” he said.
“We do not resile from the prosecution of these allegations will take many, many years and will have many twists and turns.”
Local Court Judge Greg Grogin found that it would take years before the matter was resolved.
He granted bail and said the concerns raised by prosecutors could be mitigated through strict conditions proposed by his lawyers.
Mr Roberts-Smith has not yet entered pleas, but he denied the allegations throughout a defamation case which he lost against Nine newspapers.
That civil test is different to the criminal test now before the courts, where prosecutors must prove allegations beyond a reasonable doubt.
Mr Robert-Smith received a Victoria Cross for his action during his fifth tour of Afghanistan. Now he is accused of committing the war crime of murder. (Supplied)
The judge said there was no dispute the charged offences were serious, and said bail was not “punitive in nature”.
He made a finding that “exceptional circumstances” existed in part due to the likely amount of time the matter would take as it proceeded through the courts.
The judge also made reference to a fundamental right of defendants to be aware of material presented against them, and how the need to classify material as sensitive and non-sensitive might impact Mr Roberts-Smith’s ability to prepare his defence.
The Victoria Cross recipient appeared via video link in a Sydney court from Silverwater Correctional Complex, wearing a green prison jumper.
He sat quietly and listened to the bail arguments as his parents, Len and Sue Roberts-Smith, sat in the front row of the public gallery in court.
Len and Sue Roberts-Smith travelled to Sydney from Perth to attend the bail hearing. (ABC News: Blair Wise)
As his parents left the court, Mrs Roberts-Smith was asked how excited she was to see him.
“Very,” she replied.
When asked what her message to him was, she said: “He knows, I love my son.”
Supporters gather outside court
A number of supporters gathered outside Silverwater Correctional Complex and the courthouse on Friday.
There was support for Ben Roberts-Smith outside court. (ABC News: Jamie McKinnell)
Veteran Trevor Stewart said he believed the federal government did not support Australia’s servicemen and women “as well as they should”.
“I just think it is really unfair,” he said of the proceedings.
“I’m not angry, I’m just disappointed.”