Ben Roberts-Smith, a former Australian soldier and Victoria Cross recipient, is now confronting a criminal trial after being charged with five counts of the war crime of murder. This development follows his high-profile defamation case in 2021, where he sued media outlets over allegations of misconduct during his service in Afghanistan. Roberts-Smith has been remanded in jail after his legal team declined to apply for bail, marking a significant escalation in his legal battles.
From Defamation to Criminal Proceedings
In June 2023, Roberts-Smith lost a defamation lawsuit against the Age, the Sydney Morning Herald, and the Canberra Times. The media organizations had reported in 2018 that he was involved in the murder of unarmed civilians while deployed in Afghanistan. Roberts-Smith denied all wrongdoing in that civil case, but the criminal charges now bring a new level of scrutiny. While he is expected to defend against these charges, he may not be required to enter a formal plea for several months, prolonging the legal process.
Burden of Proof: Civil vs. Criminal Trials
The defamation case operated under the civil standard of proof, requiring the media outlets to demonstrate the allegations were true on the balance of probabilities. In contrast, the criminal trial will demand a much higher burden of proof: beyond reasonable doubt. This shift means the Commonwealth Director of Public Prosecutions must conclusively prove that Roberts-Smith committed the alleged offences, rather than media organizations defending their reporting. The stricter evidentiary standards in criminal proceedings could impact the admissibility of evidence previously heard in the defamation case.
Allegations in the Criminal Trial
The criminal case will focus on a narrower set of allegations than those explored in the defamation proceedings. Specifically, Roberts-Smith is accused of intentionally causing the death of individuals in three separate incidents in Kakarak, Syahchow, and Darwan between 2009 and 2012. According to the Australian Federal Police Commissioner, Krissy Barrett, the alleged victims were not enemy combatants but were detained, unarmed, and under the control of Australian Defence Force members at the time of their deaths. Professor Donald Rothwell of Australian National University emphasized that this distinction is critical under international humanitarian law, as civilians are protected from such acts in conflict zones.
Evidence Gathering Challenges
Investigators from the Australian Federal Police and the Office of the Special Investigator have faced significant hurdles in gathering evidence for the criminal case. The allegations date back over a decade and occurred in Afghanistan, approximately 9,000 kilometers away, with no access to crime scenes. Ross Barnett, Director of Investigations at the OSI, noted the absence of typical forensic evidence such as photographs, site plans, or postmortem reports. Instead, the investigation relies on limited battlefield photographs, contemporary ADF reports, and third-party eyewitness testimony, making it a complex and challenging endeavor.
Next Steps and Legal Complexities
The court process is expected to be lengthy, potentially stretching for many months before any trial begins in the New South Wales Supreme Court. Complications may arise from the extensive media coverage of the defamation case, which could affect jury selection. Additionally, Roberts-Smith's legal team might file applications for a permanent stay of proceedings or challenge the admissibility of evidence, leading to potential appeals and further delays. These pretrial maneuvers could significantly prolong the criminal proceedings, adding to the already intense legal scrutiny surrounding this case.
