Pod Insights The Case Of Ben Roberts-Smith: How he got bail About this episode As soon as special forces veteran Ben Roberts-Smith was arrested for alleged war crimes, you started to email us. Now he's been released on bail and we didn't want to leave you hanging.
In this episode, the ABC's legal affairs reporter Jamie McKinnell explains the arguments heard in court, why bail was granted and the eye-watering security that was paid on Ben Roberts-Smith's behalf.
Catch up on Jamie's reporting of this case here: Former soldier Ben Roberts-Smith granted bail over alleged war crime of murder offences — ABC News https://www.abc.net.au/news/2026-04-17/ben-roberts-smith-bail-result-over-allegations-of-war-crimes/106572566
Indemnified soldiers give evidence in Ben Roberts-Smith case, documents show — ABC News https://www.abc.net.au/news/2026-04-18/indemnified-soldiers-give-evidence-in-ben-roberts-smith-case/106579530If you have any questions you'd like Stocky to answer in future episodes, please email [email protected] mailto:[email protected] .
The Case Of is the follow-up to the hit podcast Mushroom Case Daily, and all episodes of that show will remain available in the back catalogue of The Case Of.
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0:44 Speaker 03 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.
1:04 Speaker 04 What a privilege it is to hold your precious and beautiful Victoria Cross, my fellow Australian corporal, Robert Smith.
1:13 Speaker 05 A former Australian Defence Force member has today been arrested and will be charged with five counts of war crime murder.
1:21 Speaker 06 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.
1:29 Speaker 05 It will be alleged the victims were shot by the accused.
1:32 Speaker 07 What's been really difficult though is those brave SAS witnesses. Now, their allegations are yet to be tested. They'll be tested and waited by a jury.
1:40 Speaker 08 It's been a time we had his chance to have his say. Thank you.
1:44 Speaker 03 After 10 days in Sydney's Silverwater Prison, Ben Robert Smith is on his way back to Queensland.
1:52 Speaker 03 One of Australia's most decorated soldiers, Ben Robert Smith, has been charged with war crimes, murder. And these are charges that he says he's going to fight. While he waits for his chance to fight them, we have had so many emails asking us, what is happening here? He's now living in the community after being granted bail last week, and we just couldn't ignore your inquiries. So we wanted to update you. Jamie McKinnell, the ABC's legal affairs reporter, was there at that bail hearing, and now he is here with us. Thank you for joining us, Jamie.
2:20 Speaker 06 Hello.
2:21 Speaker 03 Ben Robert Smith's bail hearing last Friday. Now, these are usually pretty dry, kind of procedural affairs, but I imagine this one, given the attention on Ben Robert Smith, kind of broke the mould. What happened? What unfolded there?
2:35 Speaker 06 Yeah, I think it was mainly because of the level of interest in these cases, obviously much higher than a lot of other criminal cases. And to a certain extent, bail applications are predictable, because the same kinds of arguments and rebuttals usually get thrown around in these bail applications. But it was the level of interest that really stood out here. So in Sydney's Downing Centre, the court moved it to one of the building's biggest courts on Level 5. There are dozens of chairs in the public gallery there. And they also had arrangements in place for an online stream of the proceedings as well, just in case they had capacity issues. So even before this hearing started, it was pretty clear that they were anticipating a lot of interest, and rightly anticipating that.
3:20 Speaker 06 So we had a lot of journalists there, obviously, heaps of cameras outside the Downing Centre. Interestingly, there were some supporters who were being quite visual outside the court as well. 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 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.
3:53 Speaker 03 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?
4:05 Speaker 06 Yeah, so he had his parents Len and Sue Roberts, Robert 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 Robert 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
4:50 Speaker 06 of Public Prosecutions.
4:52 Speaker 03 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 defence 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 defence team about why he should be released on bail?
5:12 Speaker 06 Well, they started by really sort of emphasising this point about the likely delay in the proceedings that this case will be subjected to. And they were setting out from the very start to show that there are exceptional circumstances in this case that justify a release on bail because of those delays in combination with other factors that they raised. But there was a lot of talk at the start about the likely delay in this case. They were calling it unprecedented and uncharted legal territory. And they said there'll be delays here because of things like the size and complexity of this case, also the need to classify some of the prosecution's material as containing sensitive information, which then has flow-on effects and it has this whole set of rules
5:56 Speaker 06 about access and who can access it and where they can be and the storage of that information. So that's another complication. They raised delays in the sense of whether or not other soldiers might be charged with offences arising from the same incidents that have become part of this case. So Ben Robert Smith's barrister, Slade Howe. Was saying that it's likely this case will take years and it will have many twists and turns along the way. But what I found perhaps the most interesting, Stocky, was this one point that Mr. Howell raised. He said it's very likely in due course that a superior court or courts might need to consider whether the extraordinary pre-trial publicity surrounding these allegations means that a fair trial of the allegations is simply
6:38 Speaker 06 not possible. So that was one line in there that stuck out to me just about how unpredictable this case might be as it goes through the court system. His lawyers also argued that he needs to be on bail to prepare a defence and they said that the fairness of the proceedings would be compromised if he had to do that while he was still in custody on remand. And they said the evidence in this case might end up being nothing like the evidence in the defamation case. They said that there are many unknowns when it comes to assessing the strength of the prosecution case. So overall, they were arguing that all of this together should come as a reason why the judge should find exceptional circumstances. They proposed bail conditions and they were arguing that all of that together would amount
7:22 Speaker 06 to a judge finding that he should be released on bail.
7:25 Speaker 03 Yeah, right. And I mean, you know, when they're putting these arguments to the judge, you know, the defence arguments need to be pretty solid because it is very unusual that someone would get bail for a crime like murder. You know, even in the context of Ben Roberts Smith where these are war crimes, you know, it's still murder that he's been charged with. So it's very rare that someone charged with murder would get bail. I mean, an example I can think of was actually one that we covered on the case of earlier this year, which was the trial of Zachary Rolfe in the Northern Territory, the case of Kumunjai Walker. So it doesn't happen very often, but it's, you know, happened in that situation, happened here as well. The prosecution, I imagine, probably would have resisted this pretty strongly. What were some of the arguments they were making against bail being granted?
8:04 Speaker 06 Well, the Crown raised two main bail concerns as they were opposing this application and those two concerns were the risk of flight, the risk of interfering with witnesses and evidence. Now, Ben Roberts Smith's lawyers had already said that he's known about this investigation into him for a long time and they were arguing that he'll presumably continue to be monitored or surveilled. So they were saying, look, that's a pretty good incentive to not do either of those things, especially interfere with witnesses or evidence. But Simon Bukin, S E, who was representing the Commonwealth D P P, he was also relying on the, what he called the gravely serious nature of the charges, also the number of charges, and what he was describing as the
8:45 Speaker 06 apparent strength of the Crown case as he was opposing this bail application. He was also saying to the judge that some of these allegations are allegations that are supported by defence witnesses. And he was saying as well that by the end of July, the brief of evidence should have been substantially served on the defence. And so he seemed to be putting that out there as a reason why there doesn't seem to be any issues with delays at the moment.
9:13 Speaker 03 Yeah, right. I mean, I can only imagine that the the brief of evidence in something like this would be kind of pretty, pretty weighty. And also, the way you were, you know, explaining this before, the defence argument as well about the limitations to accessing some of that. I mean, you know, 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 a defence barrister to go into a special room somewhere to look at that, that'll, that'll take some time as well. Jamie, the kind of, the end of this 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's, as he allowed out?
9:53 Speaker 06 Well, a lot of his conditions are things that were proposed by his own lawyers because they would have been able to predict, you know, 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, 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
10:36 Speaker 06 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.
10:49 Speaker 03 Whoa, quarter of a million dollars. That is a substantial security deposit in this instance. Jamie, you talked before about the, you know, 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 amount and the level to which people are kind of engaging with it. Was the suggestion from the defence that, you know, it might be hard for Ben Robert Smith to get a fair trial and maybe, you know, could they be pushing at something there?
11:28 Speaker 06 Yeah, I think we're gonna 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 his lawyers are obviously taking note of that. And it is something that, you know, in one defence argument that might come up later on in the track would have an impact on his 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, you know, 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. And if they do, at what point they'll try to do that.
12:11 Speaker 03 Yeah, yeah. I mean, there'll be a long road of a heap of legal hearings before we get to a trial of Ben Rock Smith for these war crimes charges. 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?
12:35 Speaker 06 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.
13:19 Speaker 06 So there are, there are outlines of, of the allegations, each of the five counts of war crime murder. And that document also contains a summary at the end of what it says are common themes. So it's, it's, you know, it's part of the, the, 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.
13:43 Speaker 03 Yeah. And you mentioned the kind of the five charges that Ben Robert Smith is facing. What can you tell us about those five charges?
13:50 Speaker 06 Well, we know so far already that they're 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.
14:31 Speaker 06 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. But the difference obviously that we have to keep pointing out here and is really important is that that defamation case resulted in this federal court ruling that allegations of four war crime murders were substantially true. But it was a finding made on the balance of probabilities, so the lower civil standard. And that is a different test to what's currently before the courts in this criminal setting. In the criminal setting, prosecutors are going to need to prove the allegations beyond reasonable doubt.
15:13 Speaker 06 So there are similarities between the allegations, but it is a completely different test before the court now.
15:19 Speaker 03 Yeah, and am I right in thinking, and you're going to need to pardon my ignorance here because I know you were incredibly deep in the Ben Robert Smith defamation case. And I had a passing glance over the top of it. But in that case, was that a a process that was decided by a judge? Or was there a jury involved in that one?
15:35 Speaker 06 That was a judge alone. So it was Justice Anthony Bersenko. Um. But the other difference here is that because these are Commonwealth charges that Ben Robert Smith is facing in a criminal court. There's not an option for a judge alone trial. It has to be before a jury. And it will also have to be a unanimous verdict. So there's not an option to go to a majority verdict if. A long time down the track, a jury, you know, sometimes if they get stuck, they're they're given the option of having. Eleven to one instead of a unanimous verdict. So there's that's another really key difference here.
16:06 Speaker 03 Yeah, right. And yeah, when you're thinking that it'll be a jury deciding on these charges. That that that argument from the the defence, the point that, you know, there's so much news around this, is it possible for him to get a bit, get a fair trial? Has a different weight as opposed to just being a judge only trial in in those situations. Uh. Jamie, you've done a bunch of fantastic reporting on this over the last week or so. So I'll pop a link to some of your stories. In the episode description of this episode, so people can read a bit deeper if they would like. Um. What has Ben Robert Smith said about the the charges that he's facing?
16:37 Speaker 06 Well, we we heard from him on the weekend, on Sunday on the Gold Coast, he uh read out a prepared statement. And that was the first time since his release on bail that we we've heard him speak, actually since since his arrest, obviously, because he's been. In custody, but during that statement, he categorically rejected all of the allegations. He said he will fight to clear his name and that he's never run from a fight in his life. But he also took aim at the actions of of of police and investigators who arrested him at Sydney Airport. He described that as sensational and called it an unnecessary spectacle. Uh. And he also defended his his military career in a broader sense, I guess. He said, while I was in Afghanistan. I always acted within my values, within my training and within the rules of engagement.
17:21 Speaker 06 Uh. And he also, during that public statement, made a an appeal for privacy because, as you've mentioned, Stocky, he's been, you know, the subject of a lot of. Media reporting, has no doubt been followed by cameras a lot since that time as well. So he appealed for privacy as well and said, look, for the sake of my family especially, who have already been involved in the arrest happening in front of his daughters. He seemed concerned about that. So he broadly asked for the media to to give him some privacy now.
17:50 Speaker 03 Yeah. And I mean, the the bail hearing was in New South Wales. He was arrested in New South Wales. Is he living in Queensland at the moment though? Have I got that right?
17:58 Speaker 06 Yeah, so he's been given bail to live in Queensland and he has been, as I said, checking into a police station three times each week as part of the bail conditions.
18:08 Speaker 03 Yeah, got it. What happens now?
18:11 Speaker 06 Well, early June is the next time this will be before a judge in Sydney. But Ben Robert Smith was excused from attending that day if he's legally represented. So we'll probably only see his lawyers that day. As I mentioned, two prosecutors said the brief of evidence should be substantially served, in their words, by the end of July. But Ben Robert Smith's lawyers seem to strongly disagree with that as a realistic timetable and said, look, because of the likely delays and complications, they didn't think that was going to happen. So really, we're going to have to wait for that next big step is the, you know, the defence is handed the brief of evidence and then we see how it might play out from then on.
18:47 Speaker 03 Yeah, right. I mean, we're getting so many questions about whether or not we're going to cover this trial and not just email to [email protected] , but also to me directly in person as I'm bumping into people and talking to people about about the pod. And Jamie, I've been saying that this is probably years away from doing it. You know, it's something that we certainly would be interested in covering when the trial starts, but likely a little while away, very complicated. There's so much information, as we've been talking about, for the barristers to get across. Given the defence point that a trial is years away, am I right in kind of suggesting that, you know, we're a while away from this or have I been, you know, just kind of flat out lying to people?
19:24 Speaker 06 No, that's absolutely fair. It's definitely at least years away. I think the only other comparison that was made during this bail application was another war crime murder case involving a former soldier, Oliver Schultz. He has been charged with one count of war crime murder and he was charged in 2023. And Ben Robert Smith's lawyers actually raised that in court and said, well, look, he's, you know, he's been, it's been going through the court ever since 2023 and he's still waiting for a trial to get underway. So if that's any indication, it's very likely that Ben Robert Smith's trial is years away from us right now.
20:01 Speaker 03 Yep, great. Jamie, thank you so much for joining us on The Case Of and talking us through all of this.
20:06 Speaker 06 No worries. Thanks.
20:07 Speaker 03 That is Jamie McKinnell, the ABC's legal affairs reporter based in Sydney. He's been following Ben Robert Smith, not just through this period, but also through the defamation trial. And if you're interested in hearing a little bit more about this, make sure you grab ABC Listen and listen to The Law Report with Damian Carrick. He has had a fantastic chat with Graham Bluit. He's a former war crimes prosecutor, also a former New South Wales magistrate. It's a wonderful deep dive. So if you're interested in this, if you've enjoyed my chat with Jamie, recommend chasing that one up as well. And we'll be back in your feed next week. We start to wrap up our coverage of the case of the two intruders. There's what the jury didn't hear and what we really think. So we'll have our next installment of that next Tuesday.
20:53 Speaker 03 The Case Of is produced by ABC Audio Studios and ABC News. This episode was reported by Jamie McKinnell and presented by me, Stephen Stockwell. Our supervising producer is Greg Muller and our executive producer is Claire Rawlinson. Thank you to senior lawyer Jasmine Sims, our legal queen for legal advice every day, to the New South Wales newsroom and to Audio Studios manager, Eric George. This episode was produced on the land of the Gadigal and Weirundrie people.
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