Ben Roberts-Smith was planning to leave Australia to live overseas and had a business class flight out of the country booked in four days’ time when he was arrested at Sydney airport this month, court documents allege, with investigators telling a court “his willingness to return to Australia to face prosecution cannot be judged”.
Roberts-Smith was ultimately granted bail last week under strict conditions, a move opposed by prosecutors who said there was potential concern he was a flight risk and might try to avoid ever having to face trial for a series of alleged murders he committed in Afghanistan.
He is accused of killing unarmed, handcuffed civilians who were in the custody of Australian soldiers and posed no risk to safety, in situations where there was no active engagement in conflict.
Roberts-Smith, a former SAS corporal, a Victoria Cross recipient and once one of Australia’s most lionised soldiers, has been charged with five counts of the war crime of murder, allegedly committed while on service with the Australian military in Afghanistan between 2009 and 2012.
He has vehemently denied the charges, saying “I categorically deny all of these allegations”.
“And while I would have preferred these charges not be brought, I will be taking this opportunity to finally clear my name. I’m proud of my service in Afghanistan.”
Court documents released by Judge Susan Horan in the Downing Centre local court on Thursday show Roberts-Smith had investigated business opportunities around the world, including a sunshade firm in Thailand and seeking to buy a fitness and wellness business in Spain. He travelled to Myanmar to meet with a friend who owns an avocado farm there, as part of his “job prospecting overseas”.
Stephen McIntyre, senior investigating officer with the Office of the Special Investigator (OSI), told the court in a statement that investigators were concerned by Roberts-Smith’s opaque overseas travel plans, about which he had not informed police or investigators.
“The OSI holds concerns that Roberts-Smith is attempting to relocate to reside in a jurisdiction outside Australia. The ultimate destination and duration of this relocation is unclear as Roberts-Smiths’s booked flights and family suggest Singapore whilst the alternative destinations of Spain or the US have been identified during OSI enquiries. The possibility that Roberts-Smith has intended to disguise his travel plans cannot be excluded.
“Roberts-Smiths’ future willingness to return to Australia to face prosecution cannot be judged. The seriousness of the changes and strength of evidence against him is considerable.”
McIntyre said in addition to concerns that Roberts-Smith was a flight risk, investigators feared he would attempt to intimidate witnesses or interfere with evidence before his case came to trial.
According to the court documents, McIntyre said investigators had evidence that Roberts-Smith, during his long-running defamation trial, had instructed witnesses about their testimony, and that investigators also possessed evidence a “burner phone” was given to a witness appearing on behalf of Roberts-Smith.
McIntyre said the case against Roberts-Smith was strong, with each charge of murder supported by “at least one eyewitness account from witness(es) who have provided a signed statement to investigators”.
One murder allegation – that of a male prisoner known as Ahmadullah in 2009 – is supported by the evidence of five witnesses, court documents allege.
“Images of each deceased are also available for prosecution use,” McIntyre said.
Roberts-Smith, in his own affidavit, said he had travelled overseas 28 times since 2018 – when allegations of war crimes against him were first made public – and had always returned to Australia. He said he has regularly stopped for questioning at airports around the world, including in Thailand, Fiji and on returning to Australia.
Roberts-Smith told the court he was unemployed, had no assets, and received only a service pension of $4,500 a fortnight.
Roberts-Smith’s lawyer, Karen Espiner, said she had contacted the OSI “requesting that, in the event the OSI intended to arrest Mr Roberts-Smith, they notify me so that I could coordinate an arrest by appointment”.
Roberts-Smith’s partner, Sarah Matulin, provided an affidavit to the court in support of his bail application – which included her parents vacating their house for Matulin and Roberts-Smith to live in. She told the court they wanted to move overseas to escape the notoriety of Roberts-Smith’s failed defamation action.
“Several years ago, Ben and I started discussing the possibility of us moving overseas to try to create some normalcy in our lives. Ben has been unable to secure stable employment since leaving Seven Network after the defamation judgement was published in June 2023. The media coverage of the proceedings both before, during and after the defamation trial made it untenable for Ben to be able to secure stable, long-term employment.
“Ben and I had agreed that neither his life, nor mine, could continue to remain on pause in Australia waiting for the Office of the Special Investigator to charge him.”
Matulin said she believed Roberts-Smith would return to face trial.
“I have had countless discussions with Ben since the very start of our relationship in around 2020 that if he was ever criminally charged he would remain in (or return to) Australia to face the charges.”
