A former Australian SAS soldier accused of murdering an unarmed Afghan man in an alleged war crime should be granted bail because he could be at risk from Taliban sympathisers in prison, his lawyer has told a court.
The man, who cannot be named after a magistrate granted an interim non-publication order on his name, was arrested a week ago by the Australian federal police and has been held in prison since.
The man sought bail on Monday in Sydney’s Downing Centre local court, where his barrister, Phillip Boulten SC, argued he faced serious risks to his personal safety and had to be segregated from other inmates.
“Wherever this man is going to be held in prison, he is likely to have to mix with people in prison who sympathise with the Taliban or with other Islamic extremist groups,” Boulten said.
“He is extremely vulnerable where he is at the moment.”
The alleged incident was the subject of media reports in 2020. After publication of the reports, the then defence minister, Linda Reynolds, referred the matter to the AFP.
The soldier was suspended from duty and later terminated from the ADF on medical grounds. As part of the AFP investigation, officers searched his home in May 2022.
This is the first time a serving or former ADF member has faced a war crime charge of murder under domestic law.
Boulten urged the court to suppress the ex-soldier’s name and where he lived, saying this information could pose a danger if publicly revealed, particularly as the Taliban were now in power in Afghanistan.
“There is a state actor who has an interest in what he did in their country and [there] are literally hundreds if not thousands of people in custody who would be set against him for what he did.”
Defence personnel need comprehensive protection of their identities both while they served and afterwards, magistrate Jennifer Atkinson heard.
The man, who appeared by video link wearing prison greens, posed no risk to the community, having lived a lawful life in Australia, and could be released on bail before trial, the barrister argued.
“He has been … living a life that would be regarded as unexceptional and law-abiding in every respect,” Boulten said.
He said the ex-soldier remained in the country without fleeing despite knowing he was under investigation for years and up to $1m in surety could be offered to ensure he turned up to court.
The man would also have difficulty consulting lawyers from behind bars, given security measures put in place concerning material relevant to the case which, if divulged, could cause national security issues, the court was told.
Crown prosecutor Sean Flood opposed bail, saying there was no evidence the man would be in danger in jail.
“Corrective services are putting in place appropriate mechanisms to ensure [his] safety,” Flood said.
The possibility of the man fleeing the country also remained because there was a difference between an investigation where charges were merely possible and being arrested for this type of crime, the prosecutor argued.
“There’s clearly a strong motivation to flee once a person is charged with such a serious offence involving a maximum penalty of life imprisonment.”
Atkinson is due to deliver her bail decision on Tuesday.
• This article was amended on 28 March 2023. The accused is a former soldier, not officer.
