Australia’s ongoing legal reckoning over military conduct in Afghanistan escalated dramatically on Friday. Former SAS corporal Ben Roberts-Smith was released from protective custody after facing five charges of murder. The arrest stems directly from the 2020 Brereton Report, which exposed credible evidence of 39 unlawful killings by Australian special forces between 2005 and 2016.
A judge granted the Victoria Cross recipient conditional freedom based on “exceptional circumstances” following a 10-day stint at Silverwater Prison. Roberts-Smith was initially arrested on April 7. He strongly denies all allegations and wrongdoing.
Newly tendered court documents outline the Commonwealth’s case. Prosecutors allege Roberts-Smith directed or was complicit in the execution of unarmed detainees. Three indemnified soldier witnesses admitted to executing prisoners under his command. The documents claim Roberts-Smith placed one unarmed Afghan man on his knees before ordering a fellow soldier to shoot him.
The bail approval followed a 10-day prison stint and establishes strict boundaries for his release. He is restricted to traveling only between Sydney and Perth.
Roberts-Smith was released under stringent rules, including a $250,000 surety provided by his father, former judge Len Roberts-Smith, alongside strict tech-monitoring mandates. He must report to police three times a week and is limited to using a single, police-monitored phone and computer.
He is the first Victoria Cross recipient to face such allegations. He is only the second person in Australian history to be criminally charged with war crimes, following the 2023 arrest of fellow SAS soldier Oliver Schulz.
Each of the five charges carries a maximum penalty of life imprisonment. His defense argued the sheer volume of evidence, some dating back 17 years, means he could wait years before facing a jury. He was previously charged with 5 Afghan war crimes following a protracted joint investigation.
The prosecution marks a severe institutional shift. Australian Federal Police Commissioner Krissy Barrett verified the alleged victims were detained, unarmed, and under the control of ADF members at the time of their deaths. The Commonwealth Director of Public Prosecutions also established a rare precedent by granting legal indemnity to the three subordinate soldiers testifying against him. This trial officially moves Australia away from deferring to international courts, actively utilizing its domestic legal system to prosecute historic battlefield conduct.
The charges arrive three years after Roberts-Smith lost a landmark civil defamation trial against Nine Entertainment. In that 2023 ruling, a federal judge found allegations of him committing war crimes and bullying comrades were substantially true on the balance of probabilities.