‘Pipe dream’: Ben Roberts-Smith makes surprise move in court

Ben Roberts-Smith has not made an application for bail as his matter was mentioned in court for the first time on Wednesday after he was charged with alleged war crimes related to his deployment in Afghanistan.

Ben Roberts-Smith was on Tuesday charged with five counts of the war crime - murder, with police expected to allege he intentionally caused the death of two people, and aided and abetted others to kill three others.

The Victoria Cross recipient spent the night in custody on remand at Sydney’s Silverwater prison after he was refused bail following his arrest at Sydney Airport on Tuesday.

Mr Roberts-Smith did not appear via videolink when his matter was briefly mentioned before Judge Lucas Swan in Bail Division Court on Wednesday morning.

“In short, we’re not making an application for release today,” his solicitor Jordan Portokalli told the court.

“The second matter is we’re seeking that the matter be listed for mention preferably today in the Downing Centre, but we understand that might be a bit of a pipe dream. But as soon as possible.”

Judge Swan replied: “Very much a pipe dream because I don’t have access to the Downing Centre diary, as you would have been made aware when in contact with the Chief Magistrate’s Office yesterday”.

Judge Swan said Mr Roberts-Smith’s legal team could make apply for a bail application to be heard in Sydney’s Downing Centre Local Court, which could be as early as today.

Mr Roberts-Smith’s matter was otherwise set down to be mentioned in court again on June 4, with the brief of evidence to be served by May 21.

Australian Federal Police Commissioner Krissy Barrett on Tuesday said it will be alleged the victims were detained, unarmed, not taking part in hostilities, and under the control of the Australian Defence Force when they were allegedly killed.

“It will be the alleged the victims were shot by the accused or shot by subordinate members of the ADF in the presence of, and acting on the orders of, the accused,” Ms Barrett told a press conference on Tuesday.

Mr Roberts-Smith is facing five counts of war crimes - murder.

His arrest comes after Federal Court Justice Anthony Besanko in 2023 found Mr Roberts-Smith was involved in the murder of four unarmed men.

The findings were made on the civil standard of the balance of probabilities, which is less than the criminal standard of beyond reasonable doubt, during his defamation suit against the The Sydney Morning Herald, The Age and Canberra Times over a series of stories about war crime allegations relating to his deployment in Afghanistan.

Australia’s most decorated former soldier Ben Roberts-Smith has been arrested and is expected to be charged with five counts of the war crime of murder.

Mr Roberts-Smith maintained his innocence throughout the proceedings, and had his appeal to the Full Court of the Federal Court dismissed last year.

He was also refused leave to appeal the civil findings by the High Court.