Australia: Ben Roberts-Smith – Where to from here? Will there be a criminal prosecution following defamation proceedings?

The finding that former SAS soldier Ben Roberts-Smith committed war crimes according to the civil burden of proof naturally raises questions as to whether he will be charged and tried criminally.

On 1 June 2023, Justice Anthony Besanko of the Federal Court of Australia dismissed defamation proceedings brought by former SAS soldier Ben Roberts-Smith against several Australian media news outlets.¹

Most significantly, Besanko J was satisfied on the balance of probabilities that allegations about Roberts-Smith being responsible for or complicit in four unlawful killings of Afghan civilians were 'substantially true'.

In his judgment, Besanko J stated:

It might be said that at a general level it is inherent in the finding of criminal conduct that that may increase the likelihood of the alleged actor being charged.²

However, there are hurdles that must be overcome before a criminal trial is possible.

The outcome of the civil proceedings and negative publicity in the media does not equate to a finding of guilt beyond reasonable doubt in the criminal courts.

Different Standards of Proof in Civil and Criminal Proceedings

There are different standards of proof in criminal and civil proceedings.

The criminal threshold for proof is substantially higher and requires a judge or jury to be certain, beyond reasonable doubt, that the person committed the crime. In contrast, the civil standard only requires that a judge or jury find that, on the balance of probabilities, it is more likely than not that a point in issue can be proved.³ This civil standard applies even when the matter to be proved in a civil trial involves criminal conduct.⁴

This means that for Roberts-Smith, a judge or jury could not infer guilt beyond reasonable doubt just because a civil court found that it was more likely than not that he committed war crimes.

There currently exists a mélange of allegations regarding Roberts-Smith's alleged criminal conduct. However, a general vibe inferring guilt falls well short of the criminal standard of proof.

Difficulties With Criminal Investigations Into War Crimes

The Inspector-General of the Australian Defence Force Afghanistan Inquiry report, released in 2020 (the Brereton Report), found credible information that members of the Australian Special Forces had committed war crimes during their operations in Afghanistan between 2005 and 2016.⁵ The report found evidence of 23 incidents of alleged unlawful killing of 39 Afghan civilians by Australian special forces personnel.⁶ These accusations led to the establishment of the Office of the Special Investigator (OSI) whose role is to refer briefs to the Commonwealth Director of Public Prosecutions.⁷

In addition, the OSI has substantial coercive powers. Such powers greatly exceed those generally available to the police. Under section 10 of the Special Investigator Act 2021, the OSI 'has power to do all things that are necessary or convenient to be done for, or in connection with, or as incidental to, the performance of its duties and functions'.⁸ There does however exist privilege over coerced material. For example, the OSI has statutory powers to compel witnesses to give evidence. This includes self-incriminating evidence which would not be admissible in a criminal trial. Therefore, whilst the OSI does have substantial coercive powers, not all evidence gathered will be admissible in a criminal trial.

Investigating and prosecuting alleged crimes of this nature is incredibly difficult due to the passage of time, fading memories and inconsistency of witnesses. There are also practical challenges obtaining evidence in a country now run by the Taliban.⁹ Therefore, there remains a strong possibility that the OSI investigations against Roberts-Smith may not result in charges being brought.¹⁰

Prosecutors will most likely face unique difficulties in proving offences to the requisite degree in front of a jury.¹¹ This is because of the lack of precedent for war crimes prosecutions in civilian courts or comparable jurisdictions, combined with a lack of local experience in the area and the formidable difficulties of obtaining admissible evidence from Afghanistan.¹²

This means that while the public may believe there is enough evidence to charge and convict Roberts-Smith, there may not be. The Sydney Morning Herald allege that the federal police provided two briefs of evidence to the Commonwealth Director of Public Prosecutions (DPP), accusing Roberts-Smith of having committed war crimes, in May 2020.¹³ If this is true, then the DPP have been sitting on a possible criminal prosecution for the past three years.¹⁴ The DPP has immensely complicated any future criminal prosecution by allowing the issues to run in a defamation hearing before leveling any criminal charges.¹⁵ One potential explanation for this is that there simply isn't enough evidence to bring criminal charges against Roberts-Smith.

Further, Roberts-Smith is not currently under any substantial form of caution or restriction, evidenced by him apparently holidaying in Bali when Besanko J's judgment was made.

Issues Where a Civil Trial Precedes a Potential Criminal Trial

The fact that a civil trial canvassing war crimes occurred before Roberts-Smith is criminally prosecuted could have enormous implications.

Where criminal charges are possible, civil claims for damages do not usually precede a criminal proceeding involving similar allegations,¹⁶ as a stay of the civil proceedings may be granted by a court to avoid prejudice to criminal proceedings.¹⁷.

Doogue and George represented the applicant in the Victoria Court of Appeal decision of Lucciano (a pseudonym) v The Queen.¹⁸ In that case, the court overturned conviction because of the perceived and actual prejudice suffered by the appellant in circumstances where the criminal prosecution had the distinct advantage of the subject allegations being tested in a preceding civil trial.¹⁹

The Court of Appeal observed that the danger in the sequence of proceedings is that the civil trial is effectively run as a "dress rehearsal" for the criminal trial. Here, that danger materialised in the prosecution having the actual advantage of hearing Lucciano's evidence in the civil trial – evidence which Lucciano was at liberty not to give in any criminal proceedings.²⁰

The fact that Roberts-Smith was the applicant in the defamation claim is sure to have some significance. He opted for the civil trial knowing that there may be a potential criminal case looming. Therefore, an argument, albeit a weak one, could be made that in doing so he forfeited the right to make a Lucciano type argument.

In contrast, Roberts-Smith may be justified in arguing that it is not possible for him to receive a fair criminal trial. This is particularly pertinent if it is true that the DPP have been sitting on a potential criminal prosecution since May 2020, a period of some delay. Any future criminal trial has been immeasurably complicated by the fact that prosecutors now have access to the evidence and findings of the defamation proceedings. The evidence against Roberts-Smith has now been tried and tested in the civil court system. This gives prosecutors an undeniable and unfair advantage. If Roberts-Smith is criminally charged, then he may be within his rights to make a Lucciano type argument.

Obligations of Disclosure

The Roberts-Smith defamation trial did not involve all the evidence that would ordinarily be made available in a criminal trial. Prosecutors in a criminal trial must comply with duties of disclosure and fairness. In Roberts-Smith's case, this duty would likely operate to ensure more evidence would be disclosed in any criminal trial, as compared to the evidence disclosed in his defamation trial.²¹ For example, the court in the defamation trial had none of the evidence that would be expected in a criminal war crimes trial, such as forensics and ballistics evidence, access to prior versions of events given by witnesses, and access to footage.²² Therefore, an examination of the prospects of whether Roberts-Smith may be criminally convicted cannot be properly assessed until he is charged and prosecutions obligations for disclosure are fulfilled.

One Soldier Already Criminally Charged With War Crimes

Since the Brereton Report has been published, one former Australian Soldier has been charged with war crimes under the Criminal Code Act 1995 (Cth). Oliver Shultz was arrested on March 20 this year for gunning down an unarmed, disabled man in a wheat field in Afghanistan in 2012. If convicted, he faces a potential sentence of life imprisonment. This marks the first time a member of the Australian Defence Force has been charged with a war crime under Australian law.²³

What might differentiate the Sultz case from a potential Roberts-Smith criminal trial is the strength of the evidence. The evidence against Shultz is relatively strong. In March 2020, the ABC broadcasted helmet camera footage of Shultz shooting the victim through the head.²⁴ It is unusual in an investigation into military personnel, constrained by security classifications, that such a clear and significant piece of information could be in the public domain.²⁵

How the Shultz criminal trial proceeds will set an important precedent in the effectiveness of Australia's war crimes investigations. If a conviction cannot be secured in the first instance, it may make it more difficult to bring future cases with greater levels of ambiguity to trial, especially given the novel status of the offence in Australian courts.²⁶

Conclusion

Whether Roberts-Smith will face criminal charges is still unknown.

At this stage, it does not appear there is a criminal case against Roberts-Smith that could be proved beyond reasonable doubt, that is, if he was criminally charged that he would be convicted.

If Roberts-Smith is to be charged and tried criminally, witnesses against him would be subjected and exposed to far more extensive cross-examination than in the defamation trial. Therefore, any weaknesses in prosecutions evidence will be more rigorously tested.

Conviction by media is not conviction in the criminal courts. Until proved otherwise, Roberts-Smith deserves to have the presumption of innocence afforded to him.

While the defamation trial has sparked public and political interest in prosecuting Roberts-Smith criminally, it does not necessarily mean the OSI has yet gathered enough evidence to do so.

Footnotes

¹Michael Clarke, 'Australian Defence Force must ensure the findings against Ben Roberts-Smith are not the end of the story' (2022) The Conversation https://theconversation.com/australian-defence-force-must-ensure-the-findings-against-ben-roberts-smith-are-not-the-end-of-the-story-206749 accessed 6 June 2023.

² Roberts-Smith v Fairfax Media Publications Pty Limited (No 40) [2022] FCA 1614, 113.

³ Ugur Nedim, 'Beyond Reasonable Doubt: Criminal vs Balance of Probabilities: Civil' Criminal Lawyers Blog (22 June 2016) /blog/human-rights/beyond-reasonable-doubt-criminal-vs-balance-probabilities-civil.

⁴ Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66, 449-450.

⁵ Parliamentary Library, 'Brereton Report' (Briefing Book No. 47, 2020) https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BriefingBook47p/BreretonReport.

⁶ David Letts, 'Allegations of murder and 'blooding' in Brereton report now face many obstacles to prosecution' The Conversation (19 November 2020) https://theconversation.com/allegations-of-murder-and-blooding-in-brereton-report-now-face-many-obstacles-to-prosecution-145703.

⁷ Brereton Report (n 6).

⁸ Special Investigator Act 2021 (No.50 of 2021), s10.

⁹ David Letts (n 7).

¹⁰ Brereton Report (n 6).

¹¹ Ibid.

¹² Maxim Shanahan, 'Australia: War crimes in Afghanistan – High stakes first arrest' JusticeInfo.net (28 March 2023) https://www.justiceinfo.net/en/114493-australia-war-crimes-afghanistan-high-stakes-first-arrest.html.

¹³ Oscar Grenfell, 'Why hasn't alleged Australian war criminal Ben Roberts-Smith been charged?' World Socialist Website (4 June 2023) https://www.wsws.org/en/articles/2023/06/05/dbkf-j05.html.

¹⁴ Ibid.

¹⁵ Ibid.

¹⁶ Lucciano (a pseudonym) v The Queen [2021] VSCA 12, 24.

¹⁷ Ibid.

¹⁸ Lucciano (a pseudonym) v The Queen (n 16).

¹⁹ Nevett Ford Lawyers, 'The Intersection of Civil and Criminal Proceedings' Nevett Ford Lawyers (23 May 2021) https://nevettfordlawyers.com.au/when-the-prejudice-is-material-the-intersection-of-civil-and-criminal-proceedings/.

²⁰ Ibid.

²¹ Roberts-Smith v Fairfax Media Publications Pty Limited (No 40) (n 2), 114

²² Ibid, 120.

²³ Maxim Shanahan (n 12).

²⁴ Ibid.

²⁵ Ibid.

²⁶ Ibid.