Ben Roberts-Smith may face war crimes charges after AFP probe

Australia’s most decorated Afghan veteran, Ben Roberts-Smith, has been referred by the federal police to the Commonwealth Director of Public Prosecutions to face possible charges for alleged war crimes.

Three official sources have confirmed that a brief of evidence has been submitted by federal agents to prosecutors outlining allegations that Mr Roberts-Smith kicked a defenceless prisoner off a cliff and covered up his subsequent murder during a special forces mission in Afghanistan in September 2012.

Afghan war veteran Ben Roberts-Smith.Credit: Cole Bennetts

Multiple special forces sources have also confirmed that more of Mr Roberts-Smith’s fellow SAS soldiers have come forward to allege he was involved in other serious war crimes during his various tours of Afghanistan.

The sources have confirmed that Mr Roberts-Smith is now facing allegations from special forces soldiers or support staff he served with and who say they witnessed him murder defenceless Afghans or directed others to do so.

The alleged murders have been reported to a military inspector general inquiry or the federal police, according to special forces personnel who are aware of the allegations but who are not authorised to speak publicly.

These allegations are in addition to the cliff kicking allegations referred to the CDPP.

The referral to prosecutors by police of a brief of evidence in a complex and exhaustive investigation – as is typically the case with war crimes or murder probes – is usually a milestone event in the criminal investigation process. But while it may signal police believe there is a case for an accused to answer, it does not guarantee prosecution.

The CDPP may advise there is insufficient evidence to prosecute or ask police to find more witnesses to strengthen a case. In the case of war crimes, federal Attorney-General Christian Porter will also need to approve any possible prosecution.

In September, The Age and The Sydney Morning Herald revealed that an AFP taskforce was investigating Mr Roberts-Smith over allegations he kicked a handcuffed and innocent detainee, Ali Jan, off a cliff in the village of Darwan in September 2012.

Ali Jan’s death was first uncovered and reported by The Age and The Herald in March 2018, with the police probe starting shortly afterwards. Last September, Ali Jan's family gave an interview to Sixty Minutes alleging he had been murdered after being taken prisoner and called for a full investigation by Australia.

Over at least 18 months, the Darwan police taskforce has interviewed SAS witnesses and support staff about Mr Roberts-Smith. Detectives also travelled to Afghanistan to interview witnesses, defence sources have previously confirmed.

It is not the only police taskforce investigating Mr Roberts-Smith.

A second investigation is looking into allegations Mr Roberts-Smith is implicated in the summary execution of a man at a compound in southern Afghanistan in April 2009. That matter is still being probed and has not been referred to the CDPP.

The Age and Herald are not suggesting Mr Roberts-Smith has been found guilty of any war crime, only that he is the target of police probes – and the subject of a brief of evidence handed to prosecutors – as a result of allegations made by his SAS colleagues.

Mr Roberts-Smith is one of the most decorated veterans to have served with coalition forces in Afghanistan, has stridently denied all wrongdoing and has launched a defamation case against The Age and Herald for first uncovering and reporting the allegations made about him by his fellow soldiers and by a woman who has alleged he assaulted her.

In Canberra, politicians are now bracing for the release of the war crimes inquiry by the inspector general’s investigation chief, Supreme Court of Appeal Justice Paul Brereton.

Federal police are also bracing to be referred further war crimes allegations to investigate as a result of the Brereton inquiry. In addition to the two taskforces already investigating Mr Roberts-Smith, the federal police were recently directed by Defence Minister Linda Reynolds to begin investigating another SAS soldier. The soldier was recorded on video – broadcast by the ABC – allegedly executing an Afghan in a field in 2012.

At the Special Air Service Regiment in Perth, soldiers were recently briefed on the impending Brereton inquiry and warned not to speak to the media.

But regiment insiders said it was whistleblowers who had served in Afghanistan and spoken up about misconduct who were restoring the honour of the elite unit.

What has most angered special forces insiders is the alleged "blooding" of junior soldiers, a process in which the soldiers were pressured to murder detainees.

"It’s disgusting," said one Afghan veteran of the allegations, which are disputed by Mr Roberts-Smith.

Experienced serving and ex-members of the SAS are now trying to understand how such grave misconduct could have occurred and not been discovered by commissioned officers.

Open Arms — Veterans and Families Counselling provides support for current and ex-serving ADF personnel and their families. Free and confidential help is available 24/7. Phone [phone] (international: [phone] or [phone]) or visit www.OpenArms.gov.au