On a Friday morning in Sydney, Australia’s most decorated living soldier walked free from custody after a judge ruled he had shown exceptional circumstances to warrant bail on war crime charges.
Ben Roberts-Smith, 47, was granted bail 10 days after his arrest on April 7, following charges of murdering five Afghan civilians during his service with the Special Air Service Regiment in Uruzgan province between 2009 and 2012. Judge Greg Grobin said the former corporal had satisfied the legal threshold for release, despite prosecutors arguing he posed a flight risk and might interfere with witnesses. Roberts-Smith remains under strict conditions and is due back in court next Thursday for a further hearing on whether details of the case should be suppressed.
The allegations against him are among the most serious ever brought against an Australian service member. Prosecutors say he personally shot two unarmed Afghans and ordered subordinates to kill three others. The charges stem from a 2020 military investigation that found credible evidence Australian special forces unlawfully killed 39 Afghan prisoners, farmers and other noncombatants during the country’s longest war. Around 40,000 Australians served in Afghanistan between 2001 and 2021; 41 were killed.
This is not the first time the allegations have been tested. In a 2023 civil case, a judge found the claims against Roberts-Smith were more likely true than not, rejecting his argument that media reports had defamed him. At that trial, he denied ever killing an unarmed Afghan and accused fellow soldiers of lying out of spite or envy of his decorations. But the criminal case now before the court requires proof beyond reasonable doubt — a higher bar that could lead to life imprisonment on each count if he is convicted.
Roberts-Smith is only the second Australian veteran of the Afghanistan campaign to face war crime charges. He was awarded the Victoria Cross, the nation’s highest military honour, and the Medal of Gallantry for his actions in combat. His case has become a flashpoint in how Australia confronts the legacy of its overseas military engagements, pitting reverence for battlefield bravery against accountability for alleged atrocities.
The legal proceedings unfold against a backdrop of broader national developments. In South Australia, the electoral commission confirmed that One Nation’s Chantelle Thomas increased her margin in the seat of Narungga from 58 to 74 votes after a recount of previously unopened ballots, dashing Liberal hopes of overturning the result. Meanwhile, in New South Wales, two men were charged over the theft of 1,000 litres of diesel worth approximately $3,500 (about £1,800) from a construction site near Queanbeyan, with one also found in possession of a small amount of methylamphetamine.
For more on this story, see Supreme Court Grants Anticipatory Bail to IT Businessman in Rape Case Over Failed 30 Crore Settlement.
Elsewhere, an Afghan veteran who served alongside British forces was hospitalised with a serious brain injury after an alleged assault at a railway station in Weymouth, England. Noor Aziz Ahmadzai, who worked as a security guard at the time, is not eligible for the same support as a UK veteran after being denied entry into the British armed forces.
What the bail decision reveals about the strength of the defence case
The judge’s acceptance of “exceptional circumstances” suggests the defence succeeded in portraying Roberts-Smith’s situation as highly unusual — perhaps tied to his profile, health or personal circumstances — though the defence did not elaborate on what those circumstances were. By granting bail, the court signalled that, while the allegations are grave, they did not automatically justify continued detention ahead of trial.
How this case compares to past military accountability efforts in Australia
This marks only the second time an Australian veteran from the Afghanistan war has been criminally charged for alleged war crimes, following a pattern where investigations outpace prosecutions. The 2020 Brereton Report, which exposed widespread misconduct by special forces, led to few criminal referrals despite its damning findings — a gap this case now seeks to address, albeit belatedly.
Why the prosecution opposed bail and what it means for the trial ahead
Prosecutors argued Roberts-Smith had made advanced plans to relocate overseas without informing authorities, raising concerns he might flee or tamper with evidence. Their opposition underscores the gravity they attach to the charges, which they described as “among the most serious known to the criminal law.” The upcoming suppression hearing will determine how much of the case remains public, potentially shaping public understanding of the evidence.
What specific charges is Ben Roberts-Smith facing?
He faces five counts of war crime murder, each relating to the death of an Afghan civilian in Uruzgan province during 2009 or 2012. Under Australian law, this offence applies when someone intentionally kills a person not taking active part in hostilities — such as a civilian, prisoner or wounded soldier — during armed conflict.
Has Ben Roberts-Smith entered a plea to the charges?
No. He has not yet entered a plea and remains presumed innocent until proven guilty. His next court appearance is scheduled for next Thursday to discuss the suppression order.
What is the maximum penalty if he is convicted?
Each charge carries a maximum sentence of life imprisonment. Conviction on all five counts could result in multiple life sentences, though sentencing would be determined by the court based on the totality of the circumstances.
