One of Australia’s most decorated living military veterans, Ben Roberts-Smith, is now being held in police custody after his arrest earlier this week on war crime charges, after his legal team opted not to pursue bail ahead of upcoming court proceedings.
The 47-year-old former soldier was taken into custody by law enforcement officers at Sydney Airport on Tuesday, and was immediately slapped with five counts of murder under Australian war crime law. He was then transferred to a holding cell to await his first court appearance, held the following day.
On Wednesday, when the matter was brought before a Sydney local court, legal representatives for Roberts-Smith — who received the Victoria Cross, Australia’s highest award for battlefield bravery, in 2011 for his service in Afghanistan — did not submit an application for release on bail. Through his legal team, Roberts-Smith has repeatedly denied all allegations against him, describing the charges as egregious, malicious acts driven by spite.
Tuesday’s arrest and subsequent criminal charges cap years of scrutiny of Roberts-Smith’s conduct during his deployments to Afghanistan between 2009 and 2012, when he served as a corporal in Australia’s elite Special Air Service Regiment (SAS). The proceedings come after a landmark 2023 civil defamation ruling, which followed years of legal battles. The defamation case was initiated by Roberts-Smith himself after major Australian newspapers published reports detailing his alleged war crimes, marking the first time any Australian court had formally considered allegations of unlawful killings by Australian military personnel deployed overseas.
In that civil trial, the judge ruled that on the balance of probabilities — the lower standard of proof required in civil legal proceedings — most of the war crime allegations against Roberts-Smith were substantially true, finding he had unlawfully killed multiple unarmed Afghan civilians during his tour. Throughout the defamation case, Roberts-Smith’s legal team argued that any killings attributed to their client were lawful acts of combat, or that the deaths never occurred at all.
In the new criminal case, Roberts-Smith faces a mix of charges: one count of war crime murder, one count of participating in a joint murder, and three counts of aiding, abetting, counselling or procuring murder. If convicted on any of the charges, he faces a maximum sentence of life imprisonment.
Australian Federal Police (AFP) Commissioner Krissy Barrett confirmed that the charges are the result of a years-long, complex and exhaustive investigation into the allegations. “It will be alleged the victims were shot by the accused or shot by subordinate members of the ADF [Australian Defence Force] in the presence of, and acting on the orders of, the accused,” Barrett told reporters Tuesday.
Barrett also emphasized that the alleged misconduct is limited to a very small group of Australian military personnel, noting that the vast majority of Australian Defence Force members serve with honor and bring credit to the nation.
Following Wednesday’s initial court hearing, the presiding judge scheduled the next hearing in the case for June 4, and ordered that Roberts-Smith appear at the proceeding via video link. Roberts-Smith’s legal team has already stated they intend to file a request to move the next hearing to an earlier date.