Two key criminal investigations into alleged murders involving Ben Roberts-Smith have been abandoned by the Australian federal police because of concerns over potentially inadmissible evidence.
The long-running investigations – into murder allegations at a compound codenamed Whiskey 108 and in the southern Afghan village of Darwan – will be replaced by new inquiries undertaken by a new joint taskforce, staffed by officials from the Office of the Special Investigator and federal police investigators not previously connected to the cases.
“The joint OSI/AFP investigation – Operation Emerald – is the appropriate framework to investigate these matters,” the AFP told Guardian Australia in a statement.
“Operation Emerald is now investigating these two separate matters. The AFP is confident the Operation Emerald investigations will be undertaken as expeditiously as possible.”
The two allegations concern three killings, in which Roberts-Smith, a recipient of the Victoria Cross and Australia’s most decorated living soldier, was allegedly complicit.
The first involves the deaths of two men in the southern Afghan village of Kakarak, when a pair of unarmed men were found hiding in a secret tunnel in a bombed out compound known as Whiskey 108. One, an elderly man was allegedly executed by a junior trooper on the orders of Roberts-Smith in a so-called “blooding” incident: the other, a disabled man, was allegedly shot dead by Roberts-Smith himself after being dragged out of the compound and thrown to the ground.
The second investigation concerns an SAS mission to Darwan in 2012, where Roberts-Smith allegedly stood a handcuffed prisoner at the edge of a 10-metre cliff, before kicking him off into a dry creekbed below. The man survived the fall, but was badly injured: Roberts-Smith is alleged to have ordered a subordinate soldier to shoot him dead.
In the federal court earlier this month, Justice Anthony Besanko ruled in a defamation case that these allegations against Roberts-Smith were proven to the civil standard of the balance of probabilities, and that Roberts-Smith, giving evidence about those missions, was “not an honest and reliable witness”.
Roberts-Smith has never been criminally charged, and maintains his innocence.
At issue is the legal principle of “use immunity”.
The five-year AFP investigation into the two incidents – involving three alleged unlawful killings – has been discontinued, as first reported by Nine newspapers, because of concerns over the use of evidence that had been gathered under the coercive powers of the Brereton inquiry, the investigation by the inspector general of the Australian defence force into allegations of Australian war crimes committed in Afghanistan.
Some of the information obtained in the Brereton inquiry was obtained through the use of powers which compel individuals to attend hearings – coercive powers – or to provide information or documents – coercive material.
Derivative and direct “use immunity” prevents coercive material being used directly or indirectly against those individuals who provided the information, but not against others who may be under investigation.
During the Brereton inquiry – which ran from 2016 to 2020 – the chief of the defence force referred the two allegations to the AFP for criminal investigation.
“When these matters were referred to the AFP for investigation, the AFP sought legal and other expert advice given the complexity of the allegations, the location and the dates the alleged offences occurred,” a spokesperson for the AFP said.
“The AFP relied on this advice to manage the legal risks known at the time, including how to use the information referred from the inquiry for a criminal investigation, noting some of the information was obtained through the use of powers which compel individuals to attend hearings (coercive powers) and/or provide information or documents (coercive material).”
The AFP submitted briefs of evidence in the two matters to the commonwealth director of public prosecutions (CDPP) in 2020 and 2022.
In March this year, the CDPP informed the AFP it had decided not to prosecute the two war crimes offences on the evidence provided.
Preparing a new brief of evidence will now be the responsibility of Operation Emerald, a joint taskforce of the Office of the Special Investigator and the AFP.
Restarting the investigation could significantly delay any potential laying of charges on these specific allegations. Other investigations by the OSI into unrelated allegations against Roberts-Smith are unaffected by the CDPP’s decision.
“The AFP has acted in good faith and professionally at all times during some of the most complex investigations the AFP has ever undertaken,” the AFP spokesperson said.
“The AFP is committed to working with the OSI to achieve appropriate outcomes in the joint investigations being conducted as part of Operation Emerald.”
Evidence in Roberts-Smith’s defamation case – including his own testimony under oath, and that of other accused soldiers – is now on the public record, and can be accessed by the OSI and the AFP without concerns it may be tainted and ruled inadmissible.
In the aftermath of Besanko’s defamation judgment, which dismissed outright Roberts-Smith’s claim he had been defamed, Roberts-Smith’s parents issued a statement to News Corp papers, saying their son was “distraught” at the decision.
“We were and are of course quite shocked and devastated,” former judge advocate general Maj Gen Len Roberts-Smith and his wife, Sue, said.
“It was an unexpected and devastating outcome.
“We believe our son and believe in him. He is not a liar.
“He did not murder anyone and committed no war crimes.”
Ben Roberts-Smith was not in court for the judgment in the defamation case he brought, one of the most significant, and expensive, in Australian legal history.
He had been pictured at a Bali resort in the days leading up to the verdict, and is understood to be in New Zealand currently.
