Victoria Cross awardee Ben Roberts-Smith granted bail on murder charges

Ben Roberts-Smith, the former SAS corporal accused of five counts of war crime — murder during the Afghanistan war, was granted bail on Friday morning by a Sydney judge.

Local Court judge Gregory Grogin did not accept arguments by a lawyer for the federal Director of Public Prosecutions that the Victoria Cross recipient was a flight risk because he had secretly planned to move overseas.

The judge said the use of classified evidence during his trial would make it difficult for the defence to prepare for court if Mr Roberts-Smith was kept in jail.

“The reality is this matter, I find, will take years to get before the court,” the judge said.

“If he tried to influence witnesses against him, authorities would find out quickly.

“His arrest would no doubt come very swiftly and would find himself donned in green.”

Earlier, as the veteran watched the hearing over a video link from jail, Defence barrister Slade Howell told the magistrate exceptional circumstances warranted the famous veteran’s release while he prepares for the trial.

The war crimes charge requires a unanimous verdict, he said, and it would be impossible for Mr Roberts-Smith to access confidential documentation needed for his defence while in jail.

“We accept if there is a guilty verdict, there will (be a) custodial sentence,” Mr Howell said. “The outcome of any trial of these allegations is difficult to predict.

“There is a real possibly the applicant will be found not guilty and the prosecution will fail to prove any charge beyond reasonable doubt.”

The decision will allow Mr Roberts-Smith to be released almost immediately from the Silverwater Correctional Complex in Western Sydney and return to his home in south-east Queensland.

Sitting with his hair neatly combed and wearing a watch on his left wrist, Mr Roberts-Smith did not say anything during the one-hour hearing.

‘Further charges’

No date has been set for his trial, which could be three years away. Mr Roberts-Smith has not been required to enter a plea, although his lawyers have said he will defend himself against the charges.

He is accused of ordering three killings of prisoners or civilians in Afghanistan, killing one prisoner himself and jointly killing one person.

“There is a strong likelihood of further charges,” said Simon Buchen SC, a lawyer for the federal government.

Mr Buchen said it was “difficult to reconcile” Mr Roberts-Smith’s offer to surrender himself to the police “with the evidence that the applicant was intending to move abroad and made a decision to withhold that information from authorities in circumstances where he understood there was a to be a referral to the Commonwealth DPP about these matters.”

The lawyer didn’t say which country Mr Roberts-Smith planned to go to or when.

Evidence

Mr Buchen foreshadowed some of the evidence the government plans to present at the trial. At least one eye witness was present for each killing, he said, and forensic evidence will show marks on the victims’ wrists, indicating they were handcuffed before dying.

“This should be assessed as being a strong prosecution case,” he told the judge.

Parents Len Roberts-Smith and wife Sue sat in the front row of the public gallery behind their son’s lawyers.

Billionaire Kerry Stokes will not help pay for Mr Roberts-Smith’s legal defence, a spokesman for the businessman said. He declined to comment further. “The matter is before the courts,” he said.

Mr Stokes helped fund Mr Roberts-Smith’s unsuccessful defamation lawsuit against Nine Entertainment Co and three journalists who accused him of war crimes. He also employed the veteran as a television station manager in Brisbane.

The federal government has offered to pay the legal costs of veterans being investigated or charged with war crimes, although the funding is unlikely to cover the full cost of a top barrister for what has been dubbed the “murder trial of the decade”.

The Sydney Morning Herald reported Friday that Mr Roberts-Smith had applied for funding under the scheme.

Mr Roberts-Smith’s arrest last week at Sydney Airport after arriving from Brisbane with his teenage daughters and partner upset many veterans, especially since some journalists were notified in advance.

His barrister indicated Mr Roberts-Smith might argue that the huge publicity generated by the case, including what was dubbed the defamation trial of the century, made it impossible for him to secure a fair trial.

“It is very likely in due course that a superior court or courts may need to consider whether the extraordinary pre-trail publicity surrounding this matter which has persisted for many years might mean a fair trial of the allegations is simply not possible,” Mr Howell said.

After being awarded the Victoria Cross in 2011 for storming a machine-gun position during the Battle of Shah Wali Kot, Mr Roberts-Smith became Australia’s most-famous soldier. He was named father of the year, chair of the National Australia Day Council and joined Seven West Media, which became Southern Cross Media and publishes The Nightly.

He met the Queen and became friends with Governor-General Quentin Bryce.