While the long-running defamation case involving Ben Roberts-Smith was described by some as an unofficial war crimes trial, the Victoria Cross recipient could now face the real thing.<\/p>\n
In June 2023, Roberts-Smith lost a defamation case he brought against the Age, the Sydney Morning Herald and the Canberra Times over reports from 2018 that alleged he was involved in the murder of unarmed civilians while serving in Afghanistan.<\/p>\n
He denied all wrongdoing relating to the allegations which were the subject of the civil case. While it seems likely he will defend the criminal case, he may not be required to enter a plea in relation to the criminal charges for months.<\/p>\n
What are\u00a0the different burdens of proof\u00a0between a civil and criminal trial?<\/p>\n
When the former SAS soldier sued for defamation, the media outlets he said defamed him had to prove the allegations were true, using the civil standard of proof: on the balance of probabilities.<\/p>\n
The criminal case will be decided on a higher burden of proof: beyond reasonable doubt.<\/p>\n
Rather than media organisations trying to defend their reporting, the case will focus on the commonwealth director of public prosecutions seeking to prove Roberts-Smith committed the criminal offences he has been charged with beyond reasonable doubt.<\/p>\n
What allegations against Ben Roberts-Smith will be heard in the criminal trial?<\/p>\n
The criminal case is set to focus on a narrower set of allegations than those traversed during the defamation proceedings: that Roberts-Smith either killed or was involved in the killing of five people during separate incidents in Kakarak, Syahchow and Darwan.<\/p>\n
Roberts-Smith is alleged to have intentionally caused the death of a person on or about 12 April 2009 at Kakarak and, with another person, on or about 20 October 2012 in Syahchow.<\/p>\n
He is also alleged to have aided, abetted, counselled or procured another person to intentionally cause the death of another person during the same incident in Syahchow and the same incident in Kakarak, and to have committed the same offence in Darwan on or about 11 September 2012.<\/p>\n
The AFP commissioner, Krissy Barrett, said none of the alleged victims were enemy combatants.<\/p>\n
\u201cIt will be alleged the victims were not taking part in hostilities at the time of their alleged murder in Afghanistan,\u201d she said on Tuesday.<\/p>\n
\u201cIt will be alleged the victims were detained, unarmed, and were under the control of ADF members when they were killed.<\/p>\n
\u201cIt 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.\u201d<\/p>\n
Donald Rothwell, a professor of international law at Australian National University, said the allegations the victims were not legitimate combatants in a war was \u201cthe really important point of distinction\u201d.<\/p>\n
\u201c[It is alleged] these people were ultimately civilians who under international humanitarian law are protected,\u201d Rothwell told the ABC.<\/p>\n
Can the criminal trial hear evidence from the BRS defamation case?<\/p>\n
The five alleged offences committed in three separate incidents in Afghanistan between 2009 and 2012 were all subject to evidence during the defamation trial.<\/p>\n
The criminal case may hear the same evidence again, although is unlikely to be able to reuse information heard in the civil case. There will also be legal arguments about the admissibility of some evidence during the criminal case, with lawyers for Roberts-Smith able to argue about whether material contained in the brief of evidence is unfairly prejudicial to him, and should therefore not be put before a jury.<\/p>\n
The laws of evidence are considered stricter in criminal rather than civil proceedings, meaning that material that was heard during the defamation case may not be admissible in a criminal trial.<\/p>\n
How will investigators gather evidence?<\/p>\n
The evidence has been gathered as part of a broader criminal investigation involving the Australian federal police and the office of the special investigator (OSI) that started in 2021.<\/p>\n
Ross Barnett, the director of investigations at the OSI, said the probe had been challenging, given the allegations related to matters more than a decade ago in a country 9,000km away that could not be accessed.<\/p>\n
\u201cBecause we can\u2019t go to the country, we don\u2019t have access to the crime scene \u2026 so we don\u2019t have photographs, site plans, measurements, the recovery of projectiles, blood spatter analysis, all of those things that we would normally get at a crime scene.<\/p>\n
\u201cThere\u2019s no postmortem, therefore there\u2019s no official cause of death,\u201d Barnett said.<\/p>\n
\u201cWe have to start our investigation only with one or two photographs from the battlefield and some contemporary ADF reporting and potentially some third-party eyewitness testimony about what\u2019s alleged to have occurred.<\/p>\n
\u201cSo it\u2019s a very challenging starting point for all these investigations.\u201d<\/p>\n
What happens next?<\/p>\n
The court process could stretch for many months before \u2013 and indeed if \u2013 Roberts-Smith appears before a jury in a New South Wales supreme court trial.<\/p>\n
Complications could include finding an acceptable jury pool, given the huge amount of media coverage of the defamation case.<\/p>\n
It could also include any application by Roberts-Smith for matters to be permanently stayed, or interlocutory applications about whether certain evidence should be admissible. These are applications that occur during the pretrial process, but can be appealed to higher courts \u2013 processes that can delay by many months criminal proceedings.<\/p>\n","protected":false},"excerpt":{"rendered":"While the long-running defamation case involving Ben Roberts-Smith was described by some as an unofficial war crimes trial,…\n","protected":false},"author":2,"featured_media":593773,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23],"tags":[64,63,128,285],"class_list":{"0":"post-593772","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-space","8":"tag-au","9":"tag-australia","10":"tag-science","11":"tag-space"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/593772","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/comments?post=593772"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/posts\/593772\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media\/593773"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/media?parent=593772"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/categories?post=593772"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/au\/wp-json\/wp\/v2\/tags?post=593772"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}