Australian Federal Police Probes Deepen on Roberts-Smith’s War Crimes Saga


The revelation that the Australian Federal Police and war crimes investigators have gained access to highly classified documents in Ben Roberts-Smith’s unsuccessful defamation case underlines the gravity and intricacies of this ongoing saga. The soldier is currently facing grave allegations of breaking the rules of engagement during his service in Afghanistan.

Earlier in the year, the ruling from Federal Court Justice Anthony Besanko was clear-cut: most of the insinuations made against Mr Roberts-Smith in six articles published by The Sydney Morning Herald, The Age, and The Canberra Times were predominantly accurate. His lawsuit was subsequently dismissed. The allegations of war crimes found in these articles have piled up legal fees surpassing $25m.

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Despite the dismissal, the Commonwealth persisted in engaging with the case, prompting the Federal Court to enforce stringent orders in 2020 to secure vital national security information. Upon the trial’s conclusion, the Commonwealth lobbied for changes in these orders, aiming to grant the Australian Federal Police (AFP) and the Office of the Special Investigator (OSI) access to delicate court documents.

The OSI, working closely with the AFP, is now tasked with investigating multiple potential criminal activities associated with the Defense Force’s transgressions in Afghanistan dating from 2005 to 2016 under Operation Emerald. Roberts-Smith, while the subject of 33 ongoing probes, has continued to resolutely deny any misconduct.

Ross Barnett, the OSI’s Director of Investigations, acknowledged the clear “overlap” between their investigations’ areas of concern and the defamation proceedings. Subsequently, the Commonwealth initially sought access to all classified court documents tied to the proceedings, but scaled back its request following a hearing presided over by Justice Robert Bromwich on September 11.

Justice Bromwich recently approved the OSI to evaluate a variety of transcripts and pieces of evidence from Roberts-Smith’s extended legal ordeal. However, the OSI does not have permission to review certain court materials like transcripts from closed court sessions where Roberts-Smith and others gave their testimonies.

The controversy has not escaped notice, with Roberts-Smith’s representative, Arthur Moses SC, expressing concern over unlawful procurement of sensitive data potentially “corrupting” the investigation. After all, the potential corruption of yet another investigation into the soldier’s actions would not only be alarming but also fuel further legal complications.

Justice Bromwich affirmed that Roberts-Smith is indeed under investigation, adding to the element of intrigue with his comment that “No one knows where that is going to end up.”

To ensure that the sensitive investigation remains uncompromised, documents will be redacted by Australian government solicitors and reviewed by special legal counsel before being passed on to the OSI. Despite these precautions, Mr Moses has filed an application for legal costs to be covered, spurred by concerns raised in June over contamination possibilities.

In a turn of events, Justice Bromwich mandated that the Commonwealth foot the bill for Roberts-Smith’s court charges in the necessary application, marking a minor legal victory for the soldier. Undeterred, Mr Roberts-Smith plans to challenge Justice Besanko’s earlier ruling via an appeal set to be conducted over two weeks in February.

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Melinda Cochrane is a poet, teacher and fiction author. She is also the editor and publisher of The Inspired Heart, a collection of international writers. Melinda also runs a publishing company, Melinda Cochrane International books for aspiring writers, based out Montreal, Quebec. Her publication credits include: The art of poetic inquiry, (Backalong Books), a novella, Desperate Freedom, (Brian Wrixon Books Canada), and 2 collections of poetry; The Man Who Stole Father’s Boat, (Backalong Books), and She’s an Island Poet, Desperate Freedom was on the bestseller's list for one week, and The Man Who Stole Father’s Boat is one of hope and encouragement for all those living in the social welfare system. She’s been published in online magazines such as, (regular writer for) ‘Life as a Human’, and Shannon Grissom’s magazine.