Chapter 1: What is the main topic discussed in this episode?
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There's only a few people in the country who would have a news helicopter flying above them as they're released on bail. And one of them is Ben Robert Smith. In today's special episode, we're looking at how the SAS veteran charged with war crimes, specifically murder, was able to walk out of jail while waiting for his trial. I'm Stephen Stockwell. This is The Case Of...
What a privilege it is to hold your precious and beautiful Victoria Cross, my fellow Australian, Corporal Robert Smith. A former Australian Defence Force member has today been arrested and will be charged with five counts of war crime murder.
I'm proud of my service in Afghanistan. While I was there, I always acted within my values, within my training and within the rules of engagement.
It will be alleged the victims were shot by the accused. What's been really difficult though is those brave SAS witnesses. Now their allegations are yet to be tested. They will be tested and waited by a jury. It's about time we had his chance to have his say.
Thank you. After 10 days in Sydney's Silverwater Prison, Ben Robert-Smith is on his way back to Queensland.
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Chapter 2: What led to Ben Roberts-Smith's arrest for war crimes?
There was a veteran there who was putting up two signs outside the entrance to the Downing Centre that said, following orders, with a picture of Ben Robert Smith. And I saw another guy with a different kind of sign in support. So it was obvious even then
approaching the court building that this was a very different type of bail application in the sense of the level of interest that it has generated.
Yeah. And I mean, when you get inside the Downing Centre, when you get into the, you know, the biggest room that they've got, who was there? You know, I guess you got the parties, but were there family, friends, supporters of Ben Robert Smith?
Yeah.
Yeah, so he had his parents, Len and Sue Roberts-Smith. They flew over from WA and they were sitting in the front row of the public gallery. The rest of the gallery was full of mostly journalists and media representatives. Ben Roberts-Smith wasn't there in person. He was beamed into the courtroom on a video link. So we saw him go into this pretty small video link room of Silverwater Jail.
He was wearing a green prison top. And he sat there pretty quietly to watch all of this unfold. We only heard him speak a couple of times, and it was usually when he was asked to confirm that he could hear things or that he understood things through this whole process. And the other people we saw, obviously, were the parties.
So we had his defence team, his barrister, and then a team from the Commonwealth Department of Public Prosecutions.
Yeah. And I mean, in a bail hearing, you've got kind of those two teams, right, kind of arguing with each other, basically. You know, on the defense side, you've got them arguing why someone should be released on bail. On the prosecution side, you've got them arguing why someone shouldn't be.
What were the arguments put forward by Ben Robert Smith's defense team about why he should be released on bail?
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Chapter 3: Why was Ben Roberts-Smith granted bail after his arrest?
I mean, I can only imagine that the brief of evidence in something like this would be kind of pretty weighty. And also the way you were explaining this before, the defence argument as well about the limitations to accessing some of that. I mean, if we're looking at court documents in some places around Australia, you need to go to a special room to look at that. And I'm
Sure, if there's classified material, Commonwealth wants defence barristers to go into a special room somewhere to look at that. That'll take some time as well. Jamie, the end of the story has already been written. We know that Ben Robert Smith was released on bail on Friday. When that decision was made, what kind of conditions were applied to that or put on him as he allowed out?
Well, a lot of his conditions are things that were proposed by his own lawyers because they would have been able to predict how to overcome this test that comes up in a bail application of an unacceptable risk. So because the judge, Greg Grogan, in the end ruled that the conditions could offset those risks, it looks like they were pretty successful in coming up with proposed conditions that would
mitigate them. So the conditions include he has to report to police three days of each week. He has to be of good behaviour, which is a pretty standard condition. He has to live at a set address. He has to hand over his passport and not leave Australia. But there are more specific things as well, like restrictions on his use of mobile phones and computers.
For example, he's not allowed to use certain encrypted applications or communication tools. And a big one as well was a security deposit. His father put up a security deposit of $250,000 to secure his release on bail on Friday.
Whoa, a quarter of a million dollars. That is a substantial security deposit in this instance. Jamie, you talked before about the defence kind of point of the number, the amount of publicity around this, I guess. And there's been so many articles written about Ben Robert Smith. There's people with lots of thoughts, lots of opinions on this as well.
And I mean, we've had so many emails to the case of as well, people asking us to kind of unpack that, which I think is just an indication of the kind of interest in this trial and the level to which people are kind of engaging with it. Was the suggestion from the defence that it might be hard for Ben Robb Smith to get a fair trial and maybe could they be pushing at something there?
Yeah, I think we're going to have to wait and see in that respect what exactly they were hinting at there. But it's quite obvious even watching the news cycle that there has been a huge level of coverage in this case. And he's always obviously taking note of that. And it is something that in one defence argument that might come up later on in the track would have an impact on
ability to have a fair trial. So I guess that's kind of what they were hinting at. But his lawyers, when they raised that prospect of a superior court or courts, they only said in due course that that might have to happen. So it's really been thrown out there as a possibility without any timeline or sort of firm indication of whether they'll do that.
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Chapter 4: What unusual circumstances surrounded Ben Roberts-Smith's bail hearing?
Following the hearing on Friday, Jamie, there was a document released by the New South Wales courts. This sounds like the sort of thing that was talked about in the courtroom and then was an application for everyone to have a look at this afterwards. What was this document that you got your hands on late Friday?
Well, it's a statement of alleged facts in this case. So it's a prosecution document where it was basically 25 pages of what the Crown is relying on in this case so far. And it had some interesting revelations in there.
The main thing that stuck out to me was that there are three indemnified Defence Force witnesses who have given written accounts of their evidence to prosecutors so far, and they have been offered an undertaking by the Commonwealth DPP.
And according to the alleged facts in this case as well, those witnesses have, quote, admitted to their personal involvement in executing one or more detainees at the direction of or in complicity with Ben Robert Smith. And it says Ben Robert Smith was their military supervisor at the time. So there are outlines of the allegations, each of the five counts of war crime murder.
That document also contains a summary at the end of what it says are common themes. It's part of the beginning of this case coming together, but it was really an insight into what the nature of these allegations are and how the Crown might seek to stack them up in the future.
You mentioned the five charges that Ben Robert Smith is facing. What can you tell us about those five charges?
Well, we know so far already that there are five counts of the war crime of murder. We know that they relate to his time in Afghanistan on deployment in the years 2009 and 2012. But that document went into a bit more detail about the alleged war crime murders, including that the deceased men were Afghan civilians who were under the control of Australian soldiers at the time of their deaths.
And allegations that they were shot by Mr. Robert Smith or by a subordinate soldier under his orders. The alleged facts also outline, as I said, some common themes and they listed those common themes as things like each deceased person was an unarmed person at the time. They were in a location where Ben Robert Smith could reasonably have suspected insurgents could be located.
And it appears, Stocky, as well, there is overlap between these allegations and what was heard in the defamation case that Mr Robert Smith lost against Nine.
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