SYDNEY — Former Australian Special Air Service Regiment corporal Ben Roberts-Smith was granted bail by a Sydney court ten days after he was charged with war crimes in the killings of five people while serving in Afghanistan. Judge Greg Grogin ruled that Roberts-Smith had established exceptional circumstances to justify his release from custody.

Roberts-Smith was arrested on April 7 and charged with five counts of war crime murder involving the deaths of five Afghans in Uruzgan province in 2009 and 2012. He is accused of personally shooting dead two victims and ordering subordinates to shoot the other three. He faces a potential maximum sentence of life in prison on each conviction and has not yet entered pleas.

Australian law defines war crime murder as the intentional killing in a context of armed conflict of a person not taking an active part in hostilities, such as a civilian, prisoner of war or wounded soldier. Australian Federal Police Commissioner Krissy Barrett said: "It will be alleged the victims were not taking part in hostilities at the time of their alleged murder in Afghanistan."

Roberts-Smith took part in the bail hearing by video link, appearing on screen in a green prison tracksuit and speaking only when asked by the judge to confirm that he could see and hear the proceedings. Prosecutors opposed bail, arguing there was a risk that he would flee Australia or interfere with witnesses and evidence.

Prosecutor Simon Buchen described the charges as "among the most serious known to the criminal law." Buchen also said Roberts-Smith had made advanced plans to relocate overseas without informing authorities when he learned prosecutors were considering charges.

Defense lawyer Slade Howell told the bail hearing that Roberts-Smith's case "may properly be described as exceptional in the sense that it is out of the ordinary." Howell also said: "The use of domestic courts to prosecute alleged war crimes committed by a highly decorated Australian soldier deployed overseas repeatedly by the Australian government to fight a war on its behalf is unprecedented and is uncharted legal territory of the common law of this country."

Roberts-Smith was awarded the Victoria Cross and the Medal of Gallantry for his service in Afghanistan. He is only the second Australian veteran of the Afghanistan campaign to be charged with a war crime.

Similar allegations against Roberts-Smith were found credible in a civil court case in 2023, when a judge rejected his claims that newspaper articles defamed him. The civil court found the war crimes allegations were mostly proven on a balance of probabilities, a lower standard than the beyond reasonable doubt required in a criminal court. Roberts-Smith testified at that trial that he had never killed an unarmed Afghan and denied ever committing a war crime. He said he was the victim of spiteful fellow soldiers' lies and of others' envy of his medals.

A military report released in 2020 found evidence that elite SAS and commando regiment troops unlawfully killed 39 Afghan prisoners, farmers and other noncombatants. Around 40,000 Australian military personnel served in Afghanistan between 2001 and 2021, of whom 41 were killed.