Markets 
Dressed in prison greens and wearing a dispassionate expression, alleged war criminal Ben Roberts-Smith sat bolt upright with his hands on his knees and his hair neatly combed when he appeared via video link at the Sydney Downing Centre Local Court.
The decorated soldier, charged with five counts of war crime – murder for the alleged killings of unarmed detainees in Afghanistan, did not react as Judge Greg Grogin granted him bail on “exceptional circumstances” in front of a courtroom packed with dozens of journalists on Friday.
His release comes after 10 days in custody.
Grogin found the expected lengthy delays of the coming trial, coupled with issues conferring with his legal team and accessing sensitive documents from prison, meant the decorated former soldier should be released on bail.
“There is no way anyone today can predict what the outcome of the trial would be,” Grogin said.
He agreed that any potential risk of absconding or interfering with witnesses could be managed with strict bail conditions, issuing a warning to Roberts-Smith that he would find himself back in custody should he breach them.
“His arrest would no doubt come very swiftly and he would no doubt find himself again donned in green,” Grogin said.
Roberts-Smith was supported in court by his parents, who have always defended him, as well as a smattering of supporters inside the courtroom. His father, former judge Len Roberts-Smith, will be fronting the $250,000 surety.
Walking out of court following the bail decision, his mother Sue Roberts-Smith told media she supported her son. “I love him,” she said.
Veteran and supporter Trevor Stewart, who attended the proceedings, criticised the cost of bringing the criminal charges.
“He was following orders,” Stewart said outside court, arguing the investigators looking into the allegations weren’t present.
Stewart said he was surprised there weren’t more supporters present, noting the issue had “divided” the veteran community.
A ‘different picture’
Roberts-Smith’s defence team argued he should be granted bail due to the complexity and potential delays in the proceedings, including the need to assess national security documents.
“The prosecution of these allegations will take many, many years and have many twists and turns,” his barrister Slade Howell said.
The defence also said the information to emerge from the criminal trial would be vastly different to what was heard in the long-running defamation trial launched against this masthead.
“By the time all the evidence is disclosed or procured, we say a very different picture may emerge as to the strength of the case,” Howell said.
Roberts-Smith’s lawyers said their client was highly likely to comply with bail conditions, having known for “several years” that he was under criminal investigation and having always returned home after travelling abroad.
Howell suggested Roberts-Smith and his legal team be restricted from knowing details about witnesses and when they were providing statements, noting that more than one witness was “firmly in the prosecution camp” and had been given indemnity.
“If the applicant was foolish enough to attempt to contact, that would be quickly reported and the applicant arrested,” Howell said.
However, the prosecution argued Roberts-Smith was at risk of not showing up to proceedings, warning he had previously failed to inform authorities of a plan to move abroad, had used burner phones with encrypted communication to “evade law enforcement”, and had contacted witnesses during the long-running defamation trial.
Barrister Simon Buchen, SC, appearing for the Commonwealth Director of Public Prosecutions, said the prosecution relied upon the “gravely serious” nature of the charges, the maximum penalty of life imprisonment, and the strength of the Crown case to argue against bail.
“Forensic evidence, including marks on the wrists of detainees showing evidence of their detention prior to their execution, a large amount of documentation sourced from the Australian Defence Force, and evidence of conduct following the alleged five murders,” the prosecution said.
Grogin said the risks could be managed by the bail conditions, including restricting his travel out of Queensland unless for legal or medical appointments. Roberts-Smith has been restricted from contacting witnesses or those involved with the coming proceedings. He must surrender his passport and can only use one phone and one laptop, the details of which must be provided to police.
Grogin said Roberts-Smith had previously been placed under telephone intercepts, visual surveillance and monitoring that was likely to continue.
Roberts-Smith will next face court on June 5.
Outside Silverwater Correctional Complex, a lone Roberts-Smith supporter waved a placard at passing traffic. “Free Ben Roberts Smith”, the sign read.
The high-profile arrest
The decorated former special forces soldier was arrested on April 7 at Sydney Airport after his plane had touched down from Brisbane, before being transferred to Silverwater Correctional Complex. He had been travelling with his twin teenage daughters and girlfriend Sarah Matulin.
He was charged following a five-year investigation by the Office of the Special Investigator and the Australian Federal Police, examining allegations that Roberts-Smith had executed, or ordered the execution of, five Afghan prisoners and civilians between 2009 and 2012.
It’s expected two dozen SAS soldiers will be subpoenaed to give evidence for the prosecution in the Supreme Court of NSW.
Their testimony will be about what they knew of allegations that Roberts-Smith had executed, or ordered the execution, of five Afghan prisoners and civilians.
Others are also understood to be under active investigation for their own alleged involvement in the deaths crimes.
The court case is expected to proceed over the next two years or more.
The families of the alleged victims said they had lost faith in the Australian justice system for the delays in bringing charges but said last week they were “happy” justice was finally being done.
Read more on Ben Roberts-Smith’s arrest:
Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.
Amber Schultz is a crime and justice reporter with The Sydney Morning Herald.Connect via X or email.From our partners
Read the full article here
