‘Exceptional circumstances’: why was Ben Roberts-Smith granted bail?

In early April, one of Australia’s most decorated soldiers, Ben Roberts-Smith, was arrested and charged with five war crimes of murder.

These charges were brought under the Commonwealth Criminal Code Act.

On Friday, a bail hearing was held in Sydney. Roberts-Smith appeared remotely from custody and his lawyers requested bail in person.

The judge granted Roberts-Smith bail based on “exceptional circumstances”.

The allegations and the arrest

The allegations against Roberts-Smith relate to five separate killings of people in various locations in Uruzgan Province, Afghanistan in 2009 and 2012, where he served with the Australian Special Forces (the Special Air Service regiment, also known as “the SAS”).

Read more: Ben Roberts-Smith is accused of 5 war crime murder charges. How did we get here?

These allegations were already known in the media and through the failed defamation case that Roberts-Smith brought against Nine Entertainment.

The wider context of the alleged offending came to light in 2020 following the release of the Brereton Report which found credible information that members of the SAS had committed war crimes during operations in Afghanistan between 2005 and 2016.

On April 7, Roberts-Smith was arrested at Sydney Airport by Australian Federal Police officers and taken into protective custody in Silverwater Prison.

What makes bail so important?

A day after his arrest, a remote bail hearing took place. Roberts-Smith’s lawyer did not request bail. It is unclear why. Bail was then requested at a hearing on April 17.

Bail is an important aspect of fair trial. Courts must consider the rights of the accused, such as the right not to be punished prior to being found guilty.

But courts must also mitigate any potential risks from the accused’s behaviour, which may include harm to the community or interfering with the course of justice. Also considered is whether a person is likely to appear at their subsequent court hearings or if there a risk of absconding or fleeing.

It is notable, however, the general trend in Australia is towards decreasing access to bail, as courts are increasingly risk averse.

This is particularly so with serious offences.

Are there any precedents in Australia?

It is difficult to compare the idea of bail for war crimes with bail decisions for “ordinary” crimes – even murder. This is because one of the considerations for bail is whether someone is likely to reoffend if they are out on bail.

In the case of war criminals, they are obviously no longer in a warzone – they are likely not going to reoffend while on bail.

Australia has almost no war crimes prosecutions in its history, with no conviction for the only previous prosecution which related to the second world war.

But we can look to the one other case of war crimes charges currently before the courts – Oliver Schulz, another SAS soldier.

In March 2023, Schulz was arrested and charged with the war crime of murder. This relates to an alleged killing carried out while Schulz was serving in Afghanistan.

Under the Commonwealth Crimes Act, bail is not permitted to be granted for a person accused under Commonwealth law of causing the death of a person. Only in “exceptional circumstances” will bail be justified.

After being arrested, Schulz was initially refused bail. However, eight days later, he was granted bail.

His lawyer argued there were “exceptional circumstances”, namely Schulz would be vulnerable in jail. He would likely encounter Islamic extremists, which would be a security risk for Schulz. The magistrate agreed and granted bail.

Schulz’s bail came with a long list of conditions:

• a bail security of A$200,000

• surrender of his passport

• prohibition on contacting any of his fellow SAS soldiers

• barred from contacting any prosecution witnesses

• a curfew

• reporting to police daily (this was later amended due to practicalities of the station’s opening hours).

What about Roberts-Smith?

Roberts-Smith’s situation is different from Schulz.

Firstly, he is charged with five war crime murders, not one. Studies have shown chances of bail decrease when there are more charges and when the offences are serious.

Secondly, Roberts-Smith has sufficient financial means to abscond, as well as wealthy financial backers. This would support his ability to pay a bail security, which increases the likelihood of bail being granted. However, it would also provide the means for international travel.

Thirdly, Roberts-Smith is known for travelling internationally, including during court proceedings.

This indicates he may be a high flight risk.

Fourthly, the court must consider the risk of Roberts-Smith interfering with the course of justice.

A judge previously found Roberts-Smith threatened witnesses in his defamation case.

What did lawyers argue at the bail hearing?

These factors were raised by lawyers for both sides in Friday’s bail hearing.

Roberts-Smith’s lawyers argued he also met the threshold of “exceptional circumstances” in that staying in prison would not be safe. They argued he was not a flight risk, had been cooperating with authorities, and had not attempted to contact witnesses involved in the case.

Barrister Slade Howell argued for bail because the case would likely take years due to the complexity of the case and that Roberts-Smith would not be able to prepare his defence if he was in custody.

Prosecutor Simon Buchen argued against bail because of the serious gravity and scope of the charges. He also charged Roberts-Smith was a flight risk, alleging the accused had planned to move overseas and he had withheld this information from authorities.

Buchen presented the most significant risk as the potential for interference with witnesses or evidence and subversion of the court process.

Buchen acknowledged strict bail conditions could mitigate the flight risk but not the risk of interference in the course of justice.

Judge Greg Grogin found the risks presented by the prosecution would be mitigated by bail conditions, with those being:

• report to a police station three times a week
• only use a single phone and computer, which must be made available to police if requested
• a $250,000 bail surety
• permission to travel to Sydney and Perth for legal or medical reasons
• prohibited from interfering with witnesses or evidence
• surrender of passport

The decision diverges from typical bail trends in Australia which emphasise the seriousness of the crime, flight risk and the risk of interference with justice.

Schulz will face trial in February 2027. Roberts-Smith’s trial date remains to be set – we will know more at a status hearing set for June 4, 2026.