The prosecution of Australia's most decorated living soldier, Ben Roberts-Smith VC, has become one of the most contentious legal and military controversies in Australian history. The former Special Air Service Regiment corporal, once celebrated for extraordinary courage in Afghanistan, now faces five charges of war-crime murder arising from alleged incidents between 2009 and 2012. His reputation has been devastated, his civil litigation has failed, and the prospect of years of further legal proceedings hangs over him. Yet one fundamental legal principle must remain intact: he is entitled to the presumption of innocence until guilt is established beyond reasonable doubt in a criminal court.
Writing in The Spectator Australia, Rowan Dean has mounted a forceful criticism of the legal and political arrangements that have brought Roberts-Smith to this position. Dean questions Australia's adoption of the Rome Statute framework, the retrospective operation of amendments to Commonwealth war-crimes legislation, and the appropriateness of civilian courts adjudicating alleged offences arising from special forces operations in Afghanistan. His argument raises questions extending beyond the fate of one soldier to the relationship between military service, international law, parliamentary authority and individual justice.
The starting point must be the distinction between Roberts-Smith's unsuccessful defamation proceedings and the criminal prosecution now confronting him. In 2023, Federal Court Justice Anthony Besanko found that substantial allegations published by Nine newspapers had been established to the civil standard of proof. Roberts-Smith's appeal was subsequently dismissed, and his application for special leave to appeal to the High Court was unsuccessful.
Those findings cannot simply be wished away. They represent serious judicial conclusions reached after extensive litigation. Nevertheless, they do not amount to a criminal conviction. The distinction between the balance of probabilities and proof beyond reasonable doubt is not a technicality invented to protect unpopular defendants. It is fundamental to the criminal justice system, particularly where the allegations concern offences carrying the gravest consequences.
The criminal prosecution must establish the relevant elements of each charge through admissible evidence. The accused must have the opportunity to challenge witnesses, contest factual allegations, raise applicable defences and require the prosecution to prove its case. Previous civil findings do not relieve prosecutors of those obligations.
The passage of time introduces additional difficulties. The alleged events occurred approximately fourteen to seventeen years before charges were laid. Memories may have deteriorated, witnesses may be unavailable, documentary records may be incomplete, and the reconstruction of events during combat presents unusual evidentiary challenges. None of these difficulties establishes innocence, but they reinforce the importance of rigorous scrutiny of the prosecution's evidence.
The operational circumstances also matter. Australian special forces personnel were deployed into a dangerous conflict involving insurgent organisations that did not always distinguish themselves from the civilian population through conventional uniforms or identifiable military formations. Soldiers were required to make decisions under conditions of uncertainty, sometimes within seconds, and in circumstances where errors could prove fatal.
These realities do not excuse the deliberate killing of prisoners, detainees or civilians who are not participating in hostilities. The laws of armed conflict expressly prohibit such conduct. However, the legal assessment of a particular incident must account for the information available to the accused at the relevant time, the applicable rules of engagement, and the distinction between reasonable combat decisions and criminal acts.
A civilian observer reviewing an operation years later possesses advantages that a soldier under fire may not have enjoyed. The observer can examine documents, compare testimony and consider alternative courses of action without the immediate threat of death. The law must nevertheless distinguish between hindsight and the circumstances confronting those who actually participated in the operation.
Perhaps the most significant legal issue identified by Dean concerns the retrospective operation of amendments to Australian war-crimes legislation. In 2024, Parliament amended the Commonwealth Criminal Code's treatment of persons regarded as hors de combat, meaning individuals who are no longer taking part in hostilities and are protected from attack.
The amendment addressed the statutory definition by changing the relationship between specified conditions, replacing a cumulative formulation with an alternative one. It was expressly given retrospective application to conduct dating back to September 2002.
The government described the change as correcting a drafting problem and aligning domestic legislation more closely with international humanitarian law. That explanation is legally relevant. Deliberately killing protected persons was already prohibited under international humanitarian law during the Afghanistan conflict. The amendment cannot therefore be treated simply as the invention of an entirely new moral or legal prohibition.
Nevertheless, retrospective criminal legislation raises serious questions about legal certainty. One of the foundational principles of criminal justice is that individuals should be judged according to laws that were ascertainable when the relevant conduct occurred. Where Parliament retrospectively changes the statutory elements of an offence, the relationship between the original legislation, international law and the amended provisions deserves careful judicial examination.
The critical question is not whether war crimes should be prosecuted. They should be, where sufficient admissible evidence exists. Rather, it is whether the statutory basis of a particular prosecution is consistent with the principles governing criminal responsibility at the time of the alleged conduct.
This question must be resolved through legal argument rather than political denunciation. Australian constitutional law does not contain an absolute prohibition against every form of retrospective criminal legislation. But the absence of such a blanket prohibition does not make retrospective changes immune from scrutiny. The interpretation and application of the relevant provisions remain matters of considerable legal importance.
Dean also questions the decision to prosecute alleged military offences in civilian criminal courts. Historically, military justice systems have possessed specialist expertise concerning operational discipline, command responsibility and the practical circumstances of armed conflict. There is a reasonable argument that specialist military knowledge can assist in evaluating events arising from combat operations.
Yet the question is more complicated than simply choosing between military and civilian justice. Serious alleged violations of international humanitarian law can properly fall within civilian criminal jurisdiction, and military institutions may themselves face conflicts of interest when investigating their own personnel. What matters is that the tribunal hearing the case is independent, legally competent and equipped to evaluate military evidence fairly.
The Rome Statute and the International Criminal Court also require careful treatment. Australia's incorporation of international crimes into domestic law was intended, in part, to enable Australian authorities to prosecute such offences themselves. The principle of complementarity generally gives national legal systems primary responsibility where they are genuinely willing and able to investigate and prosecute.
Consequently, Australia's participation in the international framework does not mean that Roberts-Smith is being tried by a foreign tribunal or that Australian courts have surrendered their authority. The prosecution is proceeding under Australian legislation. Whether Parliament made the best legislative choices remains open to debate, but that is distinct from the question of the defendant's criminal responsibility.
Another concern is the enormous public attention surrounding the affair. Roberts-Smith was once presented as an example of Australian military courage, receiving the Victoria Cross for his actions during the Battle of Tizak in 2010. His subsequent fall from public esteem has been extraordinary. Extensive media reporting, litigation and political commentary have made the allegations familiar to much of the Australian population.
The danger in such circumstances is that public opinion may harden into a presumption of guilt before the criminal process has concluded. Equally, admiration for Roberts-Smith's military service must not become a presumption of innocence that prevents serious allegations from being examined. Neither public hostility nor public admiration is a substitute for evidence.
His military decorations establish that he was recognised for extraordinary courage. They do not establish what happened during every subsequent operation. Conversely, allegations concerning particular incidents do not erase the historical fact that he received Australia's highest military honour for gallantry.
It is possible to acknowledge both propositions without contradiction.
There is also a broader question about the responsibilities of political and military leaders who sent Australian soldiers into Afghanistan. Governments authorised the deployments, senior commanders established operational objectives, and military institutions developed the systems within which special forces personnel operated.
Where allegations of serious misconduct arise, accountability should not be confined automatically to the lowest identifiable level of command. Investigations should also examine whether training, supervision, operational policies or institutional failures contributed to the circumstances under investigation. This does not diminish individual criminal responsibility where it is proved. It recognises that military operations take place within organised structures of authority.
The public interest is not served by treating individual prosecutions as substitutes for examining the wider conduct of a prolonged war. Nor is it served by assuming that the existence of wider institutional responsibility absolves particular individuals of their own actions.
The Roberts-Smith affair therefore presents two distinct questions. The first concerns whether the prosecution can prove the specific criminal charges beyond reasonable doubt. The second concerns whether Australia's legal and military institutions have responded appropriately to allegations arising from the Afghanistan conflict.
The answer to one does not automatically determine the other.
A defendant may receive an unfair process even where allegations are serious. Equally, serious institutional shortcomings do not establish that a defendant is innocent. The integrity of criminal justice depends upon maintaining these distinctions.
The financial and personal consequences of prolonged litigation also deserve attention. Roberts-Smith has already experienced extensive legal proceedings, substantial financial losses and profound reputational damage. The criminal prosecution may continue for years before reaching a final determination.
Such consequences are not, by themselves, proof of an injustice. Serious criminal allegations sometimes require lengthy and complex investigations. But the state possesses formidable investigative and prosecutorial resources, making it essential that the accused retain a meaningful opportunity to challenge the case and receive a fair hearing without unreasonable delay.
There is a temptation in controversial cases to regard procedural protections as obstacles to achieving justice. That temptation should be resisted. The presumption of innocence, the burden of proof, the right to challenge witnesses and the requirement of a fair trial are not privileges reserved for sympathetic defendants. They exist precisely because criminal accusations can have devastating consequences.
The most persuasive case for Roberts-Smith's defence is therefore not that a decorated soldier must be innocent, or that battlefield conditions excuse unlawful killings. It is that the criminal law must be applied with exceptional care where allegations concern events many years earlier, under operational conditions difficult to reconstruct, and against a defendant already subjected to extensive adverse publicity.
The retrospective legislative questions deserve proper examination. The differences between civil findings and criminal proof must be respected. Witness testimony and documentary evidence must be evaluated rigorously. And the prosecution must establish the defendant's individual criminal responsibility rather than relying upon generalised allegations concerning Australian special forces operations.
None of this requires hostility towards Afghan civilians or indifference to allegations of unlawful killing. The victims of genuine war crimes are entitled to justice, and allegations involving the deaths of protected persons deserve serious investigation. But justice for victims and fairness to the accused are not opposing principles. Both are indispensable to the rule of law.
The final judgment must be based upon evidence tested in court, not upon political allegiances, military reputation or the intensity of media coverage.
Australia sent Roberts-Smith to war, decorated him for extraordinary courage and subsequently witnessed his transformation into one of the country's most controversial criminal defendants. That history makes the affair especially painful, but it cannot determine the outcome.
What Australia owes him is neither automatic vindication nor predetermined condemnation. It owes him a fair trial, the full protection of the criminal law and the presumption of innocence until the prosecution proves otherwise.
In a case attracting such extraordinary political and public attention, adherence to those principles is not a concession to the accused. It is a test of the justice system itself.
https://www.spectator.com.au/2026/10/the-ben-roberts-smith-affair/
https://www.cdpp.gov.au/newsroom/attorney-general-cth-v-benjamin-roberts-smith