Two months in and Ben Roberts-Smith’s prosecutors have already flagged lengthy delay
The timeline for giving the Victoria Cross awardee evidence that will allow him to prepare his defence has already been pushed back two months.
Less than two months after Victoria Cross awardee Ben Roberts-Smith was arrested and charged with the war crime of murder in Afghanistan, Federal prosecutors have already pushed back the timetable for his case.
In the NSW Local Court on Tuesday, a lawyer for the prosecutors said it would take at least three months for the prosecution to gather the evidence, known as a brief, and give it to a judge and Mr Roberts-Smith’s lawyers, who need the information to begin preparing their defence.
“The brief will be substantially complete and ready to serve by the 1st of September,” barrister Chelsea Brain told the court.
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By continuing you agree to our Terms and Privacy Policy.In a hearing on April 17 that granted Mr Roberts-Smith bail, a prosecution lawyer told a judge the brief could be “substantially served” by July.
The Director of Public Prosecutions did not immediately respond when asked to explain the delay, which could be an early sign that what has been dubbed the “murder trial of the decade” will take a long time to reach a jury.
National security
A barrister for the Federal Government, Trent Glover, SC, told Judge Susan Horan the court will be asked to classify the brief under the National Security Information Act, which would make it a criminal offence for journalists or anyone else to disclose sensitive information from the case.
Special procedures have to be followed under the law to prevent leaks from the brief and other evidence.
The brief will likely include witness statements, forensic evidence, information about SAS procedures and missions, and photographs of the five alleged victims.
The sensitive information could include information about four SAS veterans who have agreed to testify against Mr Roberts-Smith and been granted immunity from prosecution for murders they may have committed, according to the prosecution’s written allegations.
On Tuesday, Judge Horan scheduled a hearing on September 1 for a National Security Information order to be granted over the brief of evidence. A second hearing was scheduled for September 8 for the prosecution lawyers to hand over the brief, or part of it, or explain if it needs more time.
The choice
Once Mr Roberts-Smith’s lawyers and the prosecution lawyers have the evidence, both sides must decide whether to ask the local court for a committal hearing or allow the case to be transferred to the NSW Supreme Court for a trial.
NSW abolished traditional committal hearings in 2018, removing the power of local courts to dismiss serious charges, including murder.
Under the new system, prosecutors could use a committal hearing to question witnesses likely to support Mr Roberts-Smith, gathering information that could be used in the trial.
Such a step would likely add at least one year, and maybe more, to the case. The only other war crimes case, against SAS veteran Oliver Schulz, will have taken four years to reach a jury if the trial goes ahead as scheduled early next year.
BBQ for Ben
Hundreds of millions have been spent investigating allegations Australian soldiers executed prisoners during the war using funds transferred from the Defence budget.
Mr Roberts-Smith has said he never executed a prisoner or ordered anyone else to, although has not been required to enter a plea yet. He has been contradicted by former colleagues from the SAS.
On Sunday, One Nation leader Pauline Hanson plans to speak at a fundraising barbecue for Mr Roberts-Smith’s legal defence at a park in central Brisbane. Organiser Lawrence Henzell, who has bought 1000 sausages for the event, said he was angered by the famous veteran’s treatment.
“After I saw Ben Roberts-Smith being arrested at the airport in front of his daughters, I thought ‘enough is enough’” he said. “I’m out of pocket several thousand dollars. I hope I get it all back.”
One Nation displayed campaign signs during the Farrer by-election last month with a photograph of the veteran that said: “He fought for us. One Nation stands with him.”
If Mr Roberts-Smith’s trial is held after the federal election, which is due in two years’ time, One Nation will be free to continue to use his case for political purposes.
Mr Roberts-Smith is a former employee of Seven West Media, which is part of the same company that owns The Nightly.
