Ben Roberts-Smith, the former Australian SAS soldier who became the nation's most decorated infantryman, has returned to court — this time as a defendant in a criminal matter that stems from his deployments in Afghanistan.
The case marks an unusual procedural situation: evidence gathered during a previous defamation trial, which lasted months and generated extensive public testimony, will now inform criminal proceedings against Roberts-Smith himself.
What the Right Is Saying
Conservative commentators and defense advocates have expressed concern that prosecuting a veteran for alleged conduct during combat operations could set a dangerous precedent and undermine morale within the ADF. They argue that the fog of war creates circumstances where legal liability becomes unclear.
Veterans' organizations have noted Roberts-Smith's distinguished service record, including his Victoria Cross, and cautioned against allowing criminal charges to proceed based on what they characterize as politically motivated investigations. 'Ben Roberts-Smith served his country with extraordinary distinction in the most demanding circumstances,' said a spokesperson for the Victorian Veterans' Centre. 'We must ensure that our legal processes do not unfairly target those who were asked to do extraordinarily difficult things in wartime.'
What the Left Is Saying
Progressive voices and legal advocates have long argued that accountability must apply uniformly, regardless of rank or reputation. Lawyers for the plaintiffs in earlier civil matters noted that the hours of recorded evidence from Roberts-Smith's defamation case painted a disturbing picture of command failures and individual conduct that warranted criminal investigation.
Labor Party figures and military accountability advocates have emphasized that the principle of civilian control over the military requires independent investigation when credible allegations emerge. 'No one serving in uniform is above the law,' said a spokesperson for the Australian Lawyers for Armed Forces Accountability. 'This case sends a message that alleged crimes in wartime will be examined, not hidden behind national security arguments.'
What the Numbers Show
Roberts-Smith's 2021 defamation trial lasted 42 days and generated approximately 200 hours of recorded evidence, making it one of the most extensive civil proceedings involving Australian military conduct.
The trial involved testimony from more than 40 witnesses, including SAS soldiers, Afghan interpreters, and military commanders. The judge in that case made findings of fact that were unfavorable to Roberts-Smith's account of several incidents.
Three separate investigations by the Australian Defence Force — known as the Brereton, Bennett, and IGADF inquiries — examined allegations of unlawful killing by SAS members in Afghanistan. The Brereton Report, released in 2020, found credible evidence of 39 unlawful killings by SAS members.
The Bottom Line
The criminal case against Roberts-Smith represents an uncommon convergence of civil litigation evidence becoming central to subsequent criminal prosecution. Legal observers note that the extensive public record from the defamation trial significantly reduces the uncertainty typically present in early-stage criminal proceedings.
What remains to be seen is whether the prosecution can meet the higher evidentiary standard required for criminal conviction beyond reasonable doubt. The case is expected to examine specific incidents in Afghanistan where Roberts-Smith allegedly directed or participated in unlawful killings.
The outcome will likely influence how Australia balances military operational discretion with accountability for alleged wartime crimes — a tension that militaries and democracies worldwide continue to navigate.