A former Australian soldier alleged to have murdered an unarmed Afghan in a war crime a decade ago has been granted bail in “exceptional circumstances”, because he would be at risk from Taliban sympathisers in prison and it could be two years before he faces trial.
Oliver Jordan Schulz, 41, faced the Downing Centre local court on Tuesday by videolink, dressed in a green prison tracksuit. He spoke only to say: “Thank you, your honour.”
Before granting bail under strict conditions, magistrate Jennifer Atkinson detailed Schulz’s alleged offence in court.
The decorated former Special Air Service trooper is alleged to have shot father-of-two Dad Mohammad, as Mohammad lay in a wheat field in the southern Afghanistan village of Deh Jawz in 2012.
Mohammad, the magistrate said, had fallen backwards and was lying on his back when confronted by the Australian troops, with his arms raised, holding prayer beads in one hand.
“He was quiet and not resisting,” Atkinson said, stating the video showed Australian soldiers discussing what they should do with the man.
“The accused then turns towards the Afghan man and shoots towards him three times. The man appears to go limp after the first shot.”
The dead man’s father said Mohammad had been struggling to feed his family, including his two daughters, and his body had been found shot in the head and through the heart, Atkinson said.
The allegations against Schulz state Mohammad “was not taking an active part in the hostilities” and Schulz “knew, or was reckless as to the factual circumstances establishing that the person was not taking an active part in the hostilities”.
Footage of the incident, shot on helmet cam, was broadcast on the ABC’s Four Corners program in 2020.
Schulz was suspended from duty and later discharged from the Australian defence force on medical grounds.
Australia federal police officers raided his home in May 2022.
The charge against Schulz is the first time a serving or former ADF member has been charged with the war crime of murder under domestic law.
If convicted, he faces a potential sentence of life imprisonment.
Because of the nature and gravity of Schulz’s alleged offence, there was a presumption against bail.
However, Atkinson said “exceptional circumstances” existed which warranted granting bail.
She said it would likely be 2024 or 2025 before a trial date was set for Schulz’s case, and that he faced a “difficult, onerous and potentially dangerous custodial environment”.
The court heard earlier from Schulz’s barrister, Phillip Boulten SC, that prison posed an unacceptable safety risk for Schulz.
“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.”
Atkinson said while she accepted there were risks Schulz could flee while on bail, or might interfere with potential witnesses in his trial, those risks could be mitigated.
She said the former soldier had strong family and community links and that he did not present a danger to the Australian community.
And she said it would be difficult, given the national security issues raised by the allegations against him, to properly prepare his defence from prison.
“He is entitled to the presumption of innocence and he needs to be able to prepare for his trial,” the magistrate said.
A security was set for Schulz’s bail at $200,000. He has already surrendered his passport to the Office of the Special Investigator.
Under his bail conditions, Schulz must report to police daily and abide by a night-time curfew. He must not make any contact with any member from his SAS deployment to Afghanistan, Rotation XVII in 2012, and he must not contact any prosecution witnesses.
He must surrender, when asked, his phone and other electronic devices to police for searching.
An attempt by Schulz’s barrister to have his name suppressed failed, with the magistrate ruling that information was already in the public domain.
Atkinson did, however, impose a non-publication on Schulz’s place of residence, saying “the security issues are very real”.
