Sydney April 17 Notes, not a complete transcript live from Sydney Local Court Presided over by Judge Greg Grogin
Granted bail with $180,000 surety
There are over fifty journalists packed in the court room
Ben Roberts-Smith just appeared on live stream to the court – he is sitting clean shaven in a green jumper with a stoic expression
His first words ”Thank you, your honour”
His parents are sitting in the front row of the court
— BREAK —
Ben Roberts-Smith’s lawyers: ”This prosecution will take many, many years.”
”This is unchartered territory for the Commonwealth.”
”The proceedings will be beset with a multitude of delays … delays if the OSI decide to charge other soldiers with the same incidents … which would result in applications to join proceedings.”
”It is very likely in due course a superior court may need to consider whether the extraordinary pre-trial publicity in relation to this case – publicity which has persisted for years and continues to persist – means that a fair trial is not possible.”
”Fundamentally the fairness of these proceedings will be compromised if the applicant has to defend himself from remand custody – if the applicant is in custody there is no way that any area of the prison will be able to be cleared for an area where the applicant will be able to access evidence.”
”He won’t be able to speak openly with his lawyers, to prepare for his court appearances and his defence”
— BREAK —
Ben Roberts-Smith’s lawyers: ”THE FACTS MAKE REPEATED REFERENCE TO THE DEFAMATION PROCEEDINGS.”
THESE WERE NOT CRIMINAL PROCEEDINGS.
THEY WERE DECIDED ON A BODY OF EVIDENCE THAT WILL BE NOTHING LIKE THE BODY OF EVIDENCE IN THIS CASE.”
— BREAK —
Ben Roberts-Smith’s lawyers: ”There is a real possibility that the prosecution will fail to secure their charge beyond reasonable doubt with a unanimous jury verdict”
”47 years old, no criminal history, joined the Australian Army in 1996 at age 18, after completing basic training he joined the Royal Australian Infantry, posted to the 3rd Battallion, took two tours of duty in East Timor — I say this your honour to demonstrate this is a person whose background should be taken into account — he has known for several years that he has been under investigation by the AFP and OSI, he has repeatedly travelled overseas during that time and always returned, he has strong community ties, his father is a former judge.”
”There is no prospect of flight, he doesn’t have his passport, he isn’t going anywhere. For some time he has been offering to cooperate with the OSI by surrendering to them by appointment.”
”He will be reporting to police regularly, a surety will be in place with deposit”
”As to any risk of witness interference, proposed conditions include prohibition on contacting ADF personnel deployed to Afghanistan, appropriate restrictions on his possession and use of a telephone device, law enforcement access to which the applicant must guarantee at request.”
— BREAK —
Commonwealth Prosecution: ”Roberts-Smith faces the maximum penalty, the penalty of life imprisonment, indicating that these charges rise to the highest level.
He is charged with killing, or directing subordinates to kill, unarmed detainees under the control of Australian forces.
The prosection raises two concerns, the first bail concern is that the applicant will fail to appear in proceedings – there is evidence that he wanted to move overseas and he withheld that evidence to authorities.
The second concern is that the applicant will interfere with witnesses or evidence, and notwithstanding the stringent bail conditions imposed, this concern remains an unacceptable risk.”
— BREAK —
Ben Roberts-Smith sits in green jumper, clean shaven, hair parted and slicked back. He sits with upright posture, furrowed brow, silently listening to Commonwealth Prosecution case.
Commonwealth Prosecution: ”The prosecution relies on the fact that he faces life imprisonment, and relies on the apparent strength of the case, relying on numerous witnesses, witnesses from the Australian Defence Forces”
”There is expert forensic witnesses related to the marking on wrists of detainees prior to execution, there is large body of documentation sourced by Australian Defence Forces, there is evidence of conduct following the alleged five murders related to false reports”
Roberts-Smith visibly disagrees with prosecutor, he moves back in his chair in seeming disbelief. His hands wrest open in his lap, his brow furrowed.
Commonwealth Prosecution: ”This should be assessed as a strong prosecution case.
”War crimes have a long history in international law and the war crime of murder has existed in this country in the Criminal Code since 2002.
What is novel is that allegations relevant to the charges have been litigated in a superior court and been subject to adverse claims. The importance of that circumstance is emphasised … the evidence is not wholly untested … the transcript of those proceedings are open to the prosecution with some limitations … he gave evidence that will have impact on defining the evidentiary landscape.”
— BREAK —
Commonwealth Prosecution: ”The prosecution brief will be served substantially by July 2026.”
”There is a great degree of certainty in the evidentiary landscape due to the Federal Court (defamation) proceedings.”
”In serious cases involving crimes like terrorism and war crimes, you would expect that the accused be denied bail.”
”Defence allegations about delay were simply a list of contingencies – should it reach the point that delays become unacceptably long, that would give rise to an entitlement to apply for bail.”
”Roberts-Smith prepared to move abroad and took steps to hide this fact from authorities while knowing he faced continued investigation.”
”His interference with witnesses was subject to adverse findings by justice of the Federal Court, demonstrating a willingness to subvert material processes.”
— BREAK —
Ben Roberts-Smith expresses open disbelief and incredulity as court prosecutor claims he will destroy evidence and subvert court processes.
He makes a kind of ”huh?” facial expression. Eyebrows raised, head tilted to the side.
Commonwealth Prosecution: ”We submit that risk of destruction of evidence is an unacceptable risk that cannot be mitigated.”
Ben Roberts-Smith legal team gets chance to respond.
Ben Roberts-Smith’s lawyers: ”It cannot be that in all cases involving serious offences that bail be refused. Section 15AA mainly applies to terrorism offenses.
”THE FACT THAT THE PROSECUTION CLAIMS THE FULL EVIDENCE BRIEF WILL BE SUPPLIED BY JULY 2026 IS FRANKLY EXTRAORDINARY.”
”SOME OF THE DELAY WILL NOT BE IN CONTROL OF PROSECUTORS. WITH ALL SENSITIVE NATIONAL SECURITY INFORMATION, THERE WILL BE NSI ORDERS TO DETERMINE.”
”The applicant’s conduct in a very different case a long time ago must be viewed in context – things occuring that caused the applicant great distress – the conduct described as improper must be understood as a reaction by the applicant to what he believed to be people telling lies.”
”He will be subject to strict bail conditions to which he has never been subject before – conditions which if he breaches can be reasonably inferred by authorities who will take swift action to re-arrest him – This would risk his entire defence – why would he do this? He won’t.”
— BREAK —
JUDGE PAUSES CASE, TELLS EVERYBODY TO RETURN AT 12 PM FOR DECISION.
Part II
BEN ROBERTS-SMITH BAIL DECISION
Justice: ”Mr Roberts-Smith can you see us and hear us.”
Ben Roberts-Smith leaned forward.
”Yes, I can, thank you, your honour.”
Justice: ”There is a presumption of innocence in place for every person before the court.”
”Bail applications are considered on a case by case basis. Bail is not punitive in nature. A person is not to be punished with the imposition of strict bail conditions or by refusing bail.
”There is involvement of the NSI Act. There will be a need for evidence to be classified into sensitive and non-sensitive material. This may take some time. In reality from my experience I am also aware that if a defendant seeks access to the material, that material must be checked in a secure place, by secure means, in secure facilities. It is not a matter of sitting in a legal box in the jail. This is a matter raised by the applicant.
”I note that no arrangements have been made, the lack of facilities and procedures could emerge that would severely restrict access to the material, thereby severely restricting legal visits, and his ability to prepare defence.
”The applicants counsel indicate that the trial will take years. The prosecution says that the brief will be substantially served by the end of July 2026. That is not taking into account any NSI applications, any matters that may arise between now and then. In reality we are still dealing with cases stretching back to 2022. This matter will take years to get before a court.”
”So what, if any, exceptional circumstances exist? What circumstances could amount to exceptional circumstances?
— BREAK —
Justice: ”The complexity of the brief, the size of the anticipated brief, the fact that Mr Roberts-Smith would spend years in custody before a trial, I find exceptional circumstances have been found.
”Are there unacceptable risks? The Crown concedes that the proposed conditions of bail would adequately meet and ameliorate the unacceptable risk of flight.
The other unacceptable risk that they proffer is interference with witnesses. The Crown points to alleged actions of Mr Roberts-Smith in the past.
Mr Roberts-Smith has been under visual surveillance and telephone intercepts for years. The possibility of him interfering with witnesses would involve him improperly approaching witnesses assisting the Crown. No doubt they should have been informed that they should inform the authorities if anybody approach him. If he were allowed on bail and interfered with a witness, he would no doubt be re-arrested swiftly, and he would find himself once again donned in green (the prison issue jumper).”
— BREAK —
”There is no unacceptable risk of danger to the community as a whole.
I am satisfied that the proposed conditions mitigate risk.”
”I will be granting bail.”
— BREAK —
Ben Roberts-Smith’s mother is smiling in front row of court as judge grants bail.
”He is not to depart the Commonwealth of Australia. He is not to leave the state of Queensland except for travel to Sydney or Perth for court attendance and legal purposes.”
— BREAK —
”The accused is not to contact or approach in any way, including by third parties or social media platforms, any: prosecution witness; any personnel that deployed to Afghanistan that deployed on Rotation 9 and Rotation 12 and Rotation 18.”
”He may be able to contact witnesses through his legal representatives through his firm or counsel briefed by the firm.”
”The accused is not to use any telephone device other than telephone device identified to the OSI. He is only allowed one desktop computer and one laptop and must identify them with the OSI.”
”He is not to access or use any encrypted app: WhatsApp, Snapchat, Kik, Zoom, Discord, WeChat, Telegram.”
”He is to grant permission to any police to examine any device used by him and must pass on necessary passcodes to police. Only exception is legal professional privilege.”
— BREAK —
Ben Roberts-Smith maintains a neutral expression in green prison-issue jumper as judge grants bail. His hands sit crossed in his lap, his brow furrowed. He strokes his chin while listening to counsel, sometimes staring down at the ground.#
At last the Roberts Smith family is starting to see some justice after 10 years of this disturbing episode. Ben will now have the ability to properly assist with the preparation of his defence which surely will overcome the official bastardy and malice directed towards Australia’s foremost war hero.
