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It will be alleged the man was a member of the ADF when he
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was involved in the death of afghan
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nationals between 2009 and 2012 in circumstances that constitute war crimes under the Commonwealth Criminal Code. War hero Ben Roberts Smith was arrested by the Australian Federal Police today relating to numerous allegations of murdering unarmed Afghan civilians and prisoners during the war in Afghanistan. This arrest comes after a quiet five year long investigation into Robert Smith, which reportedly involved tapped phones, listening devices and raids by detectives in the secretive Office of Special Investigations. I'm Samantha Sellinger Morris and you're listening to the Morning Edition from the Age and the Sydney Morning Herald. Today, Investigative reporters Nick McKenzie and Michael Bachelard on how this arrest unfolded and what happens next. Welcome, Nick and Michael, to the podcast.
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C
Thank you.
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B
Good to be here, Nick.
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A
I'll start with you. Listeners may not know how long you've been wrestling with this matter. It's been nine years since you and your co reporter, Chris Masters started investigating and publishing stories about these war crime allegations against Ben Roberts Smith. Now, you were both pilloried by politicians and radio shock jocks for the these stories about a war hero, a Victoria Cross winner, and you received threats of violence from veterans who believe that your reporting amounted to a treasonous attack on the ANZAC legend itself. Then you faced a difficult court case because Ben Roberts Smith sued our mastheads for defamation. Now, our mastheads won that case, but you've written that the reporting and the case left you in at times a state of panic and you wondered even if it might just destroy your reputation. And now, of course, today we have this development with Ben Roberts Smith's arrest. So first off, Nick, what is your reaction?
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It's an obviously historic outcome today, but it's a grim day because ultimately, despite all that work we've done, we don't want to wake up and see an Australian war hero accused of the most egregious war crimes. However, these war crimes, the allegations are what SAS soldiers who serve with Robert Smith in Afghanistan. Sometimes multiple deployments. Some of these eyewitnesses are decorated. They said they saw Robert Smith allegedly engaged in the execution of Afghan prisoners, detainees. And as grim as that is, if that's what's occurred, our system of justice requires that Ben Robert Smith be held fully to account and that means entering the criminal justice system. So that is, as grim as it is a welcome development. And there is relief for those SAS soldiers who had the bravery to fight for their country in Afghanistan and the moral courage to speak up to assist not only journalists like us, but Also to work with the office of the Special Investigator, the afp, to bring these very troubling allegations to light.
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A
And can you actually bring us up to speed with what's happened today and how this arrest has unfolded?
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Robert Smith was flying in from Brisbane to Sydney with his young daughter's school holidays, unaware that waiting for him on the tarmac and at the arrival gate were detectives of the Federal Police in the office of the Special Investigator, the anti war crimes agency. He was unexpectedly to him, arrested on the plane, taken down, loaded into a police car and taken into custody, where he learned he was facing five war crimes and murder charges, including the most infamous of all those, the death of a man called Ali Jain in Afghanistan in September 2012. Really a shocking development. Never has such a high profile, decorated soldier, not just in Australia, but in the Commonwealth, faced so many serious criminal charges.
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A
And is that why in your reporting you've said that this could be the most significant war crimes prosecution in Australian history, or is it for other reasons?
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B
Well, I think it is the most. It will be the most significant war crimes prosecution in Australian history. Certainly in Australian modern history, there's no equivalent because nobody who has been so decorated has ever faced such serious war crimes charges. This is a man named Robert Smith who received the Victoria Cross for acts of bravery. This is a man who is the face of the Afghanistan conflict. His uniform and decorations are still in glass cabinets at the Australian War Memorial. He counts as his supporters billionaire media moguls and other wealthy business people, senior politicians and still large parts of the Australian community. And yet now here he is in a holding cell awaiting a criminal justice trial process that will take some years.
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A
And Michael, just over to you for a moment. I wanted to get into the particulars of what Ben Roberts Smith has actually been arrested. Nick, of course, has mentioned one alleged execution. What are all of the specific allegations here?
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C
So there are five different charges that the police say they're going to lodge for a particular crime called war crime murder. A number of them are for murders that he allegedly carried out himself and others for aiding, abetting, counselling or procuring murders. That is, he's ordered allegedly other people in his charge to conduct those murders. One of them, as Nick says, is of a man called Alijah, a farmer, poor farmer in a village called Darwin, who was in the village to collect flour, but who ended up on the wrong side of Ben Robert Smith and was allegedly kicked off a cliff. And Robert Smith then ordered another man to murder him. There are two that emerged out of a 2009 operation to clear a compound called Whiskey108. One of which it's alleged that Robert Smith machine gunned the man himself. And the other one, another blooding of a. They call it a blooding of a rookie. A new soldier was ordered by Robert Smith allegedly to shoot a man, a prisoner, in cold blood. And then two emerge out of another operation in 2012 in a place called Siretow One. It's alleged there that Robert Smith took two prisoners away from a. From a house with a rookie. He allegedly ordered the rookie to kill one of them and the other one was murdered in company. It's not clear exactly what the allegation is there from the documents we have so far, but they're the five. There were others, one other that were talked about in the defamation case that the judge in the defamation case found proven to the Civil Standard and others that were alleged in the defamation case that have not made it to the police charges.
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A
And Nick, we know that Ben Roberts Smith has strenuously denied these allegations. So what has he said today, if anything, about his arrest or expected criminal charges?
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B
Well, he's in custody. He said nothing and is not able to say anything that may change during the course of the evening or in the coming days. We can expect denials. We. We know that that's been his position now since 2017. Very powerfully voiced, aggressively maintained denials. He fought an entire defamation action based on the proposition that he never did anything wrong in Afghanistan. And we can expect those similar denials to take place in the criminal justice process as it unfolds in the coming months and years.
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And Michael, do we know yet what police have discovered in this investigation that they've been conducting into Ben Robert Smith since 2021? That means that they have met the threshold to be able to bring these charges because Ross Barnett, Director of Investigations of the Office of the Special Investigators, said that numerous other investigations into Australian military conduct in Afghanistan have not met the threshold to press charges.
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C
Look, we don't know exactly what they found, but we can surmise that some of the witnesses that gave evidence in the defamation case, and many of those were SAS witnesses that gave evidence for the newspaper. In defence of our contention that the stories that we'd written were True, there were 21 SAS soldiers or former soldiers who gave evidence for the newspapers in that case. And so we can surmise that a lot of the evidence that the police have emerges from the same sources. There were also a couple of people, soldiers in that case, who declined to give evidence in the civil case. Because it might implicate them in. In murder and open them up to being charged themselves. So it may be the case that the police have got them to speak. It's worth pointing out here, I think, Sam, that it's perhaps unlikely that we would have seen these charges either without Nick and Chris's reporting. And I can say this, Nick perhaps can't in all modesty, but the profoundly excellent and brave reporting that Nick and Chris did over many years brought this to light and kept it in the public eye. The defamation case brought by Ben Robert Smith against the newspapers to try and defend his reputation actually brought 21 soldiers out of the woodwork to give evidence against him. And it's, as I say, not a stretch to imagine that that evidence forms the basis of the police case, criminal case, against him. Now, that trial went for 110 days. He had 12 SAS soldiers on his side. But, you know, he was found to the civil standard in the defamation case to be a war criminal. And I think, you know, it's. It pays us to pause at this moment and say, without this kind of brave investigative reporting, without that defamation case and the incredibly expensive and risky endeavour that this organisation undertook to defend that, we might not find ourselves here today.
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Absolutely. I mean, it was a $25 million case, as many listeners will remember, and as you say, courageous reporting. So, Nick, this is perhaps a very basic question, but if Ben Roberts spoke, Smith is charged and faces court, what is the process from here like? Will the case be heard in a special court or what can we expect to see?
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B
The charge of war crimes, charge of murder as part of the Commonwealth Criminal Code can be heard in the Supreme Court of New South Wales. Presumably that's where it will be heard. And I presume that goes to some reason as to why he was arrested in New South Wales today rather than his home in Brisbane. Although he may apply to be tried in that state and there might be pushback there. What happens next? He'll either go through a committal process, so the evidence will be looked at by a judge and assessed as to whether the Commonwealth Director of Public Prosecutions has made the right call and that the evidence is such that there's a reasonable chance of conviction and therefore should go before a jury, or it can be directly presented to a jury. A jury will then look at and weigh that evidence to the standard of beyond reasonable doubt. It's a huge bar, It's a high bar to reach. It's an unusual trial. We know that complex criminal trials are difficult enough and knowing what A jury may or may not do. But added to this is a range of emotions that will no doubt impact affect this trial. This is a man, highly decorated, a man who still commands the support of parts of the Australian public. A man who some people say and will say, regardless of the evidence, has been unfairly dealt with or is a scapegoat. These are all things emotions that can impact or sway a jury to look away from otherwise compelling evidence. But ultimately we can have faith in the justice system. Whatever the jury finds guilty or not guilty, Robert Smith is finally being held to account. He's finally going before an extensive, exhaustive criminal justice process. And if he's found guilty and still maintains his innocence, then of course he has the right to appeal.
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And Nick, the recently retired special investigator and former judge Mark Weinberg once said that few of any Australian servicemen have been convicted by an Australian court or military tribunal of serious war crimes. So how difficult is it to prove an allegation like murder occurred in the middle of a war zone?
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Well, I think the answer to that lies a bit in your question. It happened in the middle of a foreign war zone. We're thousands of kilometres away. The normal things you would add in a homicide case, the murder weapon, the body, forensic evidence gathered at the crime scene. We can't rely on any of that. That won't be coming out. The investigators can't go to Afghanistan because it's under Taliban control. Now, what the investigators, the prosecutors will rely on is the testimony of those who were there with Robert Smith, his fellow soldiers. This case were predicated on the testimony of those soldiers. Will they be believed by a jury? But it must be said they were there. They fought like him in Afghanistan for their country, displaying that bravery of which all Australians can be proud. They came back to Australia and had the moral conviction to speak up and against what they say they witnessed.
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And finally, Nick, I mean, has something shifted culturally here in Australia, do you think, and perhaps even globally in Western countries in terms of how we treat soldiers conduct in wartime? Because you've written in a piece that was just published this morning that even if he isn't found guilty, you know, this is going to divide society to a certain degree. So I guess just tell us a bit more about that.
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We live in complicated times and unfortunately our society, I think, is more divided than ever. We've got misinformation, disinformation, propaganda that's pushed out there. We've had people like Pauline Hanson come. And even after Robert Smith was found to have engaged in war crimes by the federal court, albeit not to the criminal standard that's yet to come and we don't know what outcome that will produce. But after the federal court found overwhelmingly he did these terrible acts, Pauline Hanson coming out and saying he's a hero. Hold your head up. Hi, Ben. Robert Smith, I think that goes to just how divisive and emotional this issue is in parts of our society. And our society is fracturing more and more and more. The commissioner of the AFP was at pains to say in her press conference, and I think she, she was extremely eloquent and courageous that Robert Smith, it must be remembered the allegations involve the execution allegedly of unarmed Afghans detainees, and also that this should not taint the rest of the Australian armed forces armed services, and that Australians should rally around the men and women who serve in the defence force, people of whom we can be rightly proud. The reason, the fact that we have a commissioner pushing that just tells us how much of a tinder box this whole issue is and how emotional and divisive it has been and will yet be.
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A
Well, we're so lucky for all of the time that you've put into this investigation. And Michael, you've also been reporting on this for quite a long time. So thank you so much both for your time.
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B
Great to be with you.
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C
Thanks very much, Sam.
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After we recorded this episode, police charged Ben Roberts Smith with five counts of war crime murder. He has been refused police bail and will spend Tuesday night in custody before appearing before a bail division court on Wednesday. Today's episode of the Morning Edition was produced by Tammy Mills with technical assistance by Josh Towers. Tom McKendrick is our head of audio. The Morning Edition is a production of the Age and the Sydney Morning Herald to support our journalism. Subscribe to us by visiting theage or smh.com ausubscribe and sign up for our Morning Edition newsletter to receive a comprehensive summary of the day's most important news, analysis and insights in your inbox every day. Links are in the show Notes. I'm Samantha Salinger Morris. This is the Morning Edition. Thanks for listening.