Ben Roberts-Smith: From Hero to Accused

Hello and welcome to the trial Australia, I'm Wayne Flour.

Today we're talking about Ben Robert Smith, the former Australian SAS soldier who is also

Australia's most decorated soldier.

For years he was celebrated for his service in Afghanistan, but now the man who was once

considered a national hero is at the centre of serious criminal allegations.

Robert Smith is facing potential murder charges linked to his time in Afghanistan.

These allegations stem from claims that he was involved in the unlawful killing of unarmed

civilians during deployments.

Now I should say, this follows a major civil defamation case back in 2023 where a court

found that multiple allegations of unlawful killings were substantially true.

That case didn't make him criminally guilty, but it did mark a huge turning point in

how he's perceived publicly.

And now he's been charged with five counts of the war crime of murder and his in custody

in New South Wales's silver water correctional complex after he's arrested by the Australian

Federal Police last week.

It's important to stress that Ben Robert Smith has consistently denied any wrongdoing.

Today I'm going to be rejoined by our reporter Stephen Gibbs.

He's not only been following all of the updates on this case, but he reported on that

original civil trial back in 2023.

So he's going to explain a bit about that as well.

We'll be back with that interview after this.

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So I'm here with Stephen Gibbs, he's our top crime course reporter at the Daily Mail.

This again for joining us, Stephen, here we appreciate your contribution to the trial

Australia.

You've been all over the Sam Ben Roberts Smith case right from the start, and this has

been going on now for quite a few years, but I guess can you just give the listeners a

brief look at who Ben Roberts Smith is and why he's so sort of important.

Yeah, get away.

Ben Roberts Smith is Australia's most decorated living soldier.

He's a recipient of the Victoria Cross, the highest award for Valor in the Commonwealth,

and he also holds a medal for gallantry, which is the third highest gallantry award of Valor

award in Australia.

He received those on as well serving with the Special Air Service Regiment in Afghanistan.

So by far the nation's best known soldier and until these allegations were raised, universally

considered to be a war hero.

Absolutely.

I mean, he's such a poster boy for the Australian Army.

He's a giant man.

He's very imposing.

He's built like Arnold Schwarzenegger.

He's handsome.

He's a hero.

He's just had it all going for him.

Yeah, look, mate.

He's absolutely all of that.

He's a giant of a man.

If you stand next to him, anyone would feel dwarfed.

So he stands about 202 centimeters, which is, I think, close to six foot seven.

And yeah, very, very solidly built.

Just looks the part.

Not someone he'd muck around with.

As you say, post a poster boy.

Absolutely.

And like what we keep saying, a hero, the guy wouldn't have bought a beer in his life

since returning from Afghanistan.

And you know, fast forward to where we're at now, he's languishing in a prison cell.

So I guess, can you just take us back to where this nightmare really began for Ben

and Robert Smith?

Look, this probably starts with a series of reports that were published by what was then

Fairfax, the Fairfax newspaper company in the Sydney Morning Errol and the age in 2018.

They ran a series of stories without naming Robert Smith, but accusing a highly decorated

SAS member of having committed war crimes while serving with the special, the special forces

in Afghanistan.

They might not have named him, but there was certainly enough hints in there for not

only anybody who knew Robert Smith to recognize who they were referring to, but probably

a fair section of the community.

I certainly read the stories and knew exactly to whom they referred.

So Ben Robert Smith has taken defamation action against that publisher.

I guess he could have sat back, not identified himself, but he chose to take the money.

He's always vehemently denied any involvement in any sort of unlawful killings or obviously

any war crimes in Afghanistan and he rolled the dice and sued the publisher for defamation.

Now that meant that the publisher is going to defend that action, obviously, and the

way they went about that was attempting to prove the truth of what they were actually

saying.

They're accused of war crimes.

They're not really pretending that it could be anybody else other than him that's not

really an issue, but it comes down to truth about whether or not they can prove on the

balance of probability.

So that's really important here that it's just that civil test.

So we're not talking about beyond reasonable doubt.

It's just a balance of probabilities to prove that he had committed these war crimes.

Yeah, and you've got to think looking back on it, how this all began.

Nick McKenzie is the reporter who's really been sort of spearheading all these stories about

Ben Robert Smith.

So he had a name, Ben Robert Smith.

Ben Robert Smith is, you know, we've been talking about absolute hero.

He is disgusted that he has been portrayed, even not named as a war criminal, a killer.

This is the guy he's a hero, he's met the queen.

He's loyered up.

He's gone.

Channel 9, the age Nick McKenzie and it has ended very, very badly for him.

And this dragged on for quite some time, didn't it, Gidzie?

Yeah, look, my word, it did.

All of those allegations were dragged through the court, aired in the court.

He's there every day watching former comrades in the witness box.

Certainly some of them there reluctantly.

I'm not sure that any of them would particularly want to be there, but certainly some of them

had no interest in being there.

And going over these matters that had happened in a war zone, you know, from 2009 to 2012.

So they were all the recalling incidents on a battlefield or sometimes post-battle.

But many years ago, and I guess it's apart from anything else, it's just human nature

that under those sort of conditions, individuals are going to remember things differently.

And that was certainly the case.

It wasn't like all of these witnesses were saying exactly the same thing in each instance about what had happened.

But yeah, it's a dragged on and on and on.

Yeah, and it was clear from that civil case that Ben Robert Smith, as we said, a very imposing figure.

He would have had some strong opinions, not everybody liked him.

And it is clear that what's happened is a couple of these former soldiers who didn't like him.

They went to the press and started making these allegations.

And that's really how it got the ball rolling.

Yeah, there's a fair bit of that.

Wayne Ben Robert Smith would say that receiving the Victoria Cross was probably a blessing in a curse

that in some ways it put a target on his back.

There would have been fellow SAS soldiers who felt that he had been recognised for actions

that were no more courageous than actions they'd undertaken themselves.

That's probably just another human thing that is understandable,

that that might build up resentment if a certain soldier felt that someone was being recognised

for something that was no more significant than what they had done.

They might just resent that.

Certainly that's what Ben Robert Smith had said that that was the sort of motive for former comrades.

Some of these former comrades coming forward and being prepared to give the evidence that they did.

Now, I will give you just to take us quickly through really the nuts of this case.

What the civil case is because of course the criminal trial is effectively going to try to run the civil trial again.

Well, what are the allegations against Ben Robert Smith?

We obviously need to be a little bit careful here because now they're at the criminal stage.

We're almost sort of going backwards a bit about how much we can talk about,

but the guts of it is that he's accused of killing unarmed Afghan males, fighting age males,

as they call them, who were in custody of Australian soldiers at the time.

So the allegations aren't really that these are things that have happened in the fog of war

or that they were split second decisions.

The way the allegations are couched are that Ben Robert Smith has effectively executed

or ordered the execution of Afghans that will call prisoners to keep it simple at the end of a mission.

And that gives you that trial.

I mean, as ugly as it was, there was all sorts of things brought anywhere.

I mean, at some stage there too that there was allegations and they will largely dismiss

that Ben Robert Smith may have assaulted a female partner.

Yeah, that's right.

There was plenty happening on the sidelines with this whole case.

Obviously the focus was the alleged war crimes, but there were allegations that Ben Robert Smith

had assaulted a woman at a Canberra hotel.

The judge made no findings against Ben Robert Smith in regard to that.

That woman gave evidence, the judge has made a decision about that evidence

and that effectively went nowhere.

It was clearly something though that Ben Robert Smith was deeply concerned about

in the witness box who was towards the end of his evidence who has asked

how these allegations had changed him.

And he was talking about, I walk down the street now and people look at me

and they see someone who'd hit a woman.

It almost seemed to seem to be more offensive than the war crimes allegations.

And I guess for some, I mean, nobody wants to be accused of hitting a woman.

But as we said, those allegations went nowhere.

And the judge said as much, you know, he didn't give it much weight at all.

At the end of that trial, like you said before, it did go on for some time.

It didn't go Ben Robert Smith's way.

What were the judge's conclusions at the end of that trial?

The simplest way to put it again considering that we've got a criminal matter coming up now

is that he found most of the allegations of war crimes to be substantially true

on the balance of probabilities.

That's not a particularly high test.

It's just a civil test.

It's not a criminal point.

It's nothing like beyond reasonable doubt.

But he has basically found that Ben Robert Smith has taken part

in the execution of unarmed Afghan men.

Yeah.

And when that decision was handed down, of course,

Nick McKenzie and the Asia-Cinema and Heronolites were felt quite vindicated about that.

But Ben Robert Smith then immediately appealed that decision to any

and then things got even more messier.

Yeah, look, he did appeal that decision.

That didn't work either.

Ultimately, the appeal court found in 9th favour.

So he was left with a few options

other than seeking leave to appeal to the high court

and they would not give him leave to appeal.

So that was the end of the matter for him.

But that was the civil case.

Yeah.

And then after that appeal, of course,

there was information that came out about allegations that Channel 9 had been giving

hush money to some of the people who were involved in that civil trial.

Yeah, that's all been fairly murky too.

And 9 had sought to have that material suppressed for 50 years,

which is extraordinary and extraordinarily long time

to have something better subject of a suppression order.

There was a payment of $700,000 to a witness in the matter.

A woman who had given evidence during the trial.

So we fast forward to where we're at now

and people have a lot of opinions about this.

But we saw, and again, it was Channel 9, Ben Robertsmith

coming off of playing with his twin 15-year-old daughters

being greeted by federal police

with a waiting camera crew there to capture this moment.

It's really inflamed a lot of people the way that it's done.

I mean, a lot of people, we always talk about trial by a media and you know,

you and I will probably deny that we go about doing that.

But I mean, this one is, it's very different.

I don't know about you, Givesy, but I've never had sort of police really sort of help me out

in that regard to help me give me a scoop.

What was your take on the way that Ben Robertsmith was arrested?

It's highly unusual as far as I'm concerned and in my experience.

But I can go back to say something like the backpacker killer, Ivan Malat,

is arrested in the early 90s.

Now, that's something where the media were chipped off and understandably,

and I think most right-thinking people would appreciate it

that you want to get 40-jiv a creature like that being arrested.

This is a very different situation.

We revealed some days ago that Robertsmith had repeatedly told the AFP,

if you want to talk to me about these things,

if you're going to arrest me if this is going any further,

I will present myself at a time in place of your choosing.

Now, he knew that he was on him and knew that this was possible,

if not likely to happen one day, he had said to them,

if you're going to move on me, I'll come and see you and we'll go from there.

And that's certainly not what happened.

The bloke's getting off a flight from Brisbane to Sydney,

as you say, with his twin 15-year-old daughters and his partner.

And the feds turn up on the plane and take him off

in front of cameras.

There were nine cameras there.

I don't know many of them, there were cameras from Network 9 there.

The AFP had filmed it as well and provided that footage to media later.

I'm not sure that that went all that well for them

because there's been a huge backlash about the way the whole thing was conducted.

Some of them that many people would still consider a war hero

being arrested in that sort of fashion.

And it's certainly his camp have told us that they believe that was done

with a plan to humiliate him as much as possible.

Now, regardless of all that gives,

he Ben Robert Smith is wallowing in a jail cell.

As this goes to air now, he's applying for bail.

He may be released by the time this is air, we don't really know.

But he now faces a very lengthy legal process, which you've touched on before.

But this trial is going to be very, very different to the civil trial, isn't it?

It'll be completely different.

The biggest thing, obviously, once again,

and I just feel like continually coming back to this,

that the prosecution has to prove this beyond reasonable doubt.

And that's a pretty high bar.

They're facing some enormous challenges.

The police can see themselves.

You know, this has happened in a war zone,

10,000 kilometres away from Australia.

As far back as 2009,

you've got no crime scene.

Some of these deceits, the alleged victims,

aren't even formally identified.

They don't have names.

You've got no access to that crime,

so you've got no access to that country.

That country is now controlled by the Taliban.

It's not like we can go in there and take witness statements

or gather any further evidence.

You don't have post-mortems.

Therefore, you don't have a cause of death

of any of these alleged victims.

Something that can say they'll shot.

But there's no post-mortem.

You've got no projectiles.

You've got no forensic evidence.

You've got no murder weapons or alleged murder weapons.

What they're going to be relying on is largely

is the evidence of witnesses of fellow SAS members.

And they're not all going to be saying exactly

the same thing.

So it will take years.

It could well be years before there are verdicts in this.

It will cost many millions of dollars.

If Ben Robert Smith does not get bail,

it could be on demand for years,

in a maximum security present.

So by the time the whole thing is concluded,

20 years will have passed

between the alleged commission of these offenses

and some sort of criminal resolution to it.

Yeah, it sounds like an absolute madness.

You know, you and I have covered enough trials.

And like you said, I mean,

the little bit of evidence that they do

sort of have photos.

And what was taken by Ben Robert Smith's own people,

maybe by him himself,

that's all they've got to work with.

He's just going to wonder how on earth

can you convince a jury beyond reasonable doubt

on, you know, the kind of evidence we see in trials,

forensics, photos, CCTV, it's just none of it.

No, Wayne, that's exactly right.

You know, I don't know how you set out

to prove some of these people ever lived,

let alone that they died.

If you don't have a name for someone,

and that's not for secrecy provisions

or anything like that,

a couple of these alleged victims just don't have names.

They seem to be Afghan males

who are photographed dead after an action,

but there's no name attached to them.

Now, if you imagine yourself as a juror

and you're trying to decide the guilt or otherwise,

if someone accused of someone whose name you don't even know,

you don't know the location of their remains,

you don't know how they died.

I mean, it's a big ask.

We'll take a quick break there

and we'll be back in a second.

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Welcome back and listening to the trial Australia.

I'm still here with Stephen Gibbs.

Do we know Gibbsie at all?

How this has come about?

Who has been pushing really for the charging of Ben Roberts-Smith?

Do we got any idea? Is that a mystery?

Look, I think once the ball got rolling with this bridge

and inquiry, they probably felt they had to follow it through.

And some of the allegations certainly are serious.

But this sort of exercise hasn't been conducted.

After other wars, we've been engaged in.

And I'm quietly confident that if you're raked over

Vietnam or the jungles of World War II,

you're going to find very similar or identical sorts of allegations.

I think these things get a life of their own.

They've certainly been pushed very hard by nine newspapers

for whatever reason, but it takes on a life of its own.

I guess once the allegations have made,

someone's decided we need to keep investigating this.

And their attitude would be if there is some sort of evidence,

whatever that is, that criminal offences have occurred,

we need to prosecute them.

But I'm not sure if a lot of thought's gone into the likelihood

of those prosecutions succeeding.

And I'm not saying I'm not trying to predict what will happen,

but they've conceded themselves that there is a lot of hurdles here.

These are very difficult matters to investigate and to prove.

Now, it's going to be interesting to leading up to next week,

it is Anzac Day.

And I think the government and authorities

and that might get a very clear picture of how people

are feeling about it, because we've got the dawn services.

You're veterans marching.

I mean, Ben Robert Smith is going to be on everyone's

mind when this happens, and it's going to be very interesting to see

what happens there.

Wayne, it's a really good point.

This is, without doubt, the most sacred day

on the Australian calendar, a day that we remember all those

who've served the country and died in the country service.

If Ben Robert Smith is not granted bail on Friday,

if he's buying bars when we're commemorating Anzac Day,

he's going to be the focus of many, many people's attention.

You will see it on the streets.

There will be ice stand with Ben Robert Smith.

It will be a huge figure, even if it's grant bail,

and that certainly won't surprise if he is.

He will be a focus of many people's attention on Anzac Day.

It'd be very hard to have a conversation

about the service of Australian men and women at war

without considering the situation that Ben Robert Smith

is found himself in.

The reality is, he used facing life imprisonment,

potentially life imprisonment, if convicted of any one of these five

counts of murder.

Now, the stakes are extremely high.

And you've got to feel for every veteran on Anzac Day

who's going to be out there doing their march.

We're wearing their uniforms.

I mean, it's already been a shocking years

we've spoken about for wars going on,

which always makes people a little bit antsy,

glorifying these soldiers.

And here you go at the same time,

one of their most decorated war heroes

has been called a murderer.

And these poor guys who were fighting for us,

they're going to feel like absolute dirt.

Yeah, look, if you're a veteran of Afghanistan

and you're marching on Anzac Day

or if you're having a beer afterwards,

are you sitting around thinking,

oh, people are looking at me,

wondering what I really did there in my country's name?

I mean, it's an awful situation to be in.

And I feel very sorry for anybody who feels

like that or is putting that position.

I mean, I don't know how you're reconciled that.

It's horrible stuff.

I mean, a lot of these people are there now.

They're already dealing with PTSD

and trying to get jobs,

trying to recover their lives

and they just didn't need this.

So it is a terrible situation.

Now, Gibson, we all know that criminal trials

cost a hell of a lot of money to fund.

And you're talking here about years and years,

Ben Robertsmith had some good support

from his former Boston Channel 7

who helped him pay some of those legal costs

in the civil trial.

But is there any idea of how Ben Robertsmith

is going to be able to afford to defend himself through this?

You know, look, this is going to cost multiple millions of dollars.

But both sides are up for multi-million dollar legal bills.

There have been a fair bit of speculation

that Australia's richest woman,

Gina Reinhart, who has been a very strong supporter

of veterans in general

and Ben Robertsmith in particular,

that she would be bankrolling his defense.

Now, we've confirmed that that is not the case.

What he's going to do is he's applied to him

and will be granted funding

by a body called the Afghanistan Inquiry Legal Assistance Service.

That's a Commonwealth-funded body

that's been set up for people who are in exactly Ben Robertsmith's position

who've been charged with war crimes allegedly committed

during Australia's commitment to Afghanistan.

So what you've got is the taxpayer funding

the prosecution of ours while war hero

and the taxpayer funding his defense.

For millions and millions of dollars for the next few years.

On the extraordinary situation, chaos.

Thanks, Gibbs E. for joining us again on the trial Australia.

I dare say you have got a lot of work ahead of you

over the coming months and years on this case.

You might just see our retirement on it, Gibbs E.

But thank you so much for joining us.

And we look forward to getting your updates as this progresses.

Why, and I'm sure we'll be talking about this one again.

So that's it for today.

We'll be back next Thursday with a new episode.

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