Tapped phones, listening devices, secret raids: Nick McKenzie on the arrest of Ben Roberts-Smith

Nine years after investigative journalists Nick McKenzie and Chris Masters started reporting on war crime allegations against Ben Roberts-Smith, Australia’s most decorated living soldier is sitting in a police holding cell after being arrested at Sydney Airport.

What is expected to follow will be the most significant war crimes prosecution in modern Australian history. Speaking with host Samantha Selinger-Morris on The Morning Edition podcast, The Age and The Sydney Morning Herald’s McKenzie and Michael Bachelard explain the five-year-long investigation into Roberts-Smith, who has maintained his innocence since 2017. Plus, how the arrest unfolded, and what happens next.

Click the player below to listen to the full episode, or read on for an edited extract of the conversation.

Selinger-Morris: What’s happened today, and how has this arrest unfolded?

McKenzie: Roberts-Smith was flying in from Brisbane to Sydney with his young daughters on school holidays, unaware that waiting for him on the tarmac and at the arrival gate were detectives of the [Australian] Federal Police and the Office of the Special Investigator, the anti-war crimes agency.

He was, unexpectedly to him, arrested on the plane, taken down, loaded into a police car, and taken into custody, where he learned he was facing five war crimes – murder charges, including the most infamous of all those, the death of a man called Ali Jan in Afghanistan in September 2012.

Really, a shocking development. Never has such a high-profile decorated soldier, not just in Australia, but in the Commonwealth states, faced so many serious criminal charges.

Selinger-Morris: What are all the specific allegations here?

Bachelard: There are five different charges that police say they’re going to lodge for a particular crime called war crime – murder.

A number of them are for murders that he allegedly carried out himself and others for aiding, abetting, counselling or procuring murders, that is, he’s ordered, allegedly, other people in his charge to conduct those murders.

One of them, as [McKenzie] says, is of a man called Ali Jan, a farmer, poor farmer in a village called Darwan, who was in the village to collect flour, but who ended up on the wrong side of Roberts-Smith and was allegedly kicked off a cliff and Roberts-Smith then ordered another man to murder him.

There are two that emerged out of a 2009 operation to clear a compound called Whiskey 108, of which it’s alleged that Roberts-Smith machine-gunned the man himself and the other one… they call it a blooding of a rookie, a new soldier, was ordered by Roberts-Smith, allegedly, to shoot a man, a prisoner in cold blood, and then two emerge out of another operation in 2012 in a place called Syahchow.

Bachelard: One, it’s alleged there that Roberts-Smith took two prisoners away from a house with a rookie. He allegedly ordered the rookie to kill one of them and the other one was murdered in company. It’s not clear exactly what the allegation is there from the documents we have so far, but they’re the five.

There was one other that was talked about in the defamation case, that the judge in the defamation case found proven to the civil standard, and others that were alleged in the defamation case that have not made it to the police charges.

Selinger-Morris: The recently retired special investigator and former judge Mark Weinberg once said that few, if any, Australian servicemen have been convicted by an Australian court or military tribunal of serious war crimes. So how difficult is it to prove an allegation like murder occurred in the middle of a war zone?

McKenzie: Well, I think the answer to that lies a bit in your question. It happened in the middle of a foreign war zone. We’re thousands of kilometres away.

The normal things you would adduce in a homicide case, the murder weapon, the body, forensic evidence gathered at the crime scene, we can’t rely on any of that. That won’t be coming out. The investigators can’t go to Afghanistan because it’s under Taliban control now.

What the investigators, the prosecutors, will rely on is the testimony of those who were there with Roberts-Smith, his fellow soldiers. This case was predicated on the testimony of those soldiers. Will they be believed by a jury? But it must be said they were there. They fought, like him, in Afghanistan for their country, displaying that bravery, of which all Australians can be proud. They came back to Australia and had the moral conviction to speak up and against what they say they witnessed.

Listen to the full podcast episode in the player above or click here.

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