Fallen hero Ben Roberts-Smith to stay in jail for TWO months as he faces court on war crimes charges

Australia’s most decorated soldier Ben Roberts-Smith will remain in custody for two months after being charged with war crimes.

Roberts-Smith, 47, was arrested by Australian Federal Police on Tuesday over allegations that he killed unarmed civilians while deployed in Afghanistan between 2009 and 2012.

He is also accused of failing to stop members of his unit from killing three others.

The Victoria Cross recipient did not front Bail Court himself when his matter was mentioned on Wednesday morning, and was instead represented by criminal lawyer Jordan Portokalli.

Mr Portokalli told the court there was no application for bail, and sought to have the matter relisted in Sydney‘s Downing Centre later on Wednesday.

‘In short, we’re not making an application for release today, that’s the first thing,’ he said.

‘The second is we’re seeking for the matter to be listed for mention today in person at the Downing Centre, but that might be a pipe dream.’

The judge said he did not have access to the Downing Centre diary and listed the matter for brief status on June 4, when Roberts-Smith will face court from prison via audio-visual link.

Ben Roberts-Smiths is pictured being taken into custody by AFP on Tuesday

Roberts-Smith was charged with five counts of war crimes following a five-year joint investigation by the AFP and the Office of the Special Investigator (OSI).

Armed AFP officers swooped when Roberts-Smith arrived on a Qantas flight from Brisbane on Tuesday.

He was taken to Mascot police station where he was refused bail. 

Footage captured Roberts-Smith wearing a polo shirt, jeans and cap, being led down a stairway off the aircraft and escorted across the tarmac to a white four-wheel drive. 

A Nine News television camera crew had been waiting at the airport to film the 47-year-old’s arrest when the plane touched down.

Nine newspapers first published claims Roberts-Smith had committed war crimes while serving with the SAS in Afghanistan in a series of stories run in 2018. 

At a press conference on Tuesday afternoon, AFP Commissioner Krissy Barrett spoke about the arrest but did not not use Roberts-Smith’s name.

‘It will be alleged the man was a member of the ADF when he was involved in the deaths of Afghan nationals between 2009 and 2012, in circumstances that constitute war crimes under the Commonwealth Criminal Code,’ she said.

Ben Roberts-Smith is Australia’s most decorated soldier. He is pictured with Queen Elizabeth II

‘It will be alleged the victims were detained, unarmed, and were under the control of the ADF members when they were killed.

‘It 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.’

Commissioner Barrett said the Afghans ‘were not taking part in hostilities at the time of their alleged murder’.

The AFP and OSI commenced 53 investigations involving allegations of war crimes by the ADF in Afghanistan, 39 of which are not being actively pursued, subject to further evidence emerging.

Ten investigations into allegations of criminal offences under Australian law related to breaches of the Laws of Armed Conflict by ADF personnel are ongoing. 

One investigation resulted in another former SAS soldier being charged with murder. That case has been listed for trial in February next year in the NSW Supreme Court.

Roberts-Smith sued Nine newspapers and journalists Nick McKenzie and Chris Masters for defamation after they reported he had committed war crimes in Afghanistan.

In 2023, the Federal Court’s Justice Anthony Besanko found the claims that Roberts-Smith was responsible for the murder of four unarmed male civilians were substantially true, on the balance of probabilities.

McKenzie and Masters were first to report details of Roberts-Smith’s arrest on Tuesday morning.

Roberts-Smith appealed against Justice Besanko’s decision to the Full Court of the Federal Court but lost. He was refused leave to further appeal to the High Court.