WAR CRIMES - Afghanistan * Ben Roberts Smith charged

[Kurve]

19 Nov 202011.13 AEDT

Brereton report finds alleged unlawful killing of 39 people.​

Justice Brereton considered in a detailed 57 allegations of incidents and issues.

Campbell says he found there to be “credible information to substantiate 23 incidents of alleged unlawful killing of 39 people by 25 Australian Special Forces personnel, predominantly from the Special Air Service Regiment”.

Link to Ben Roberts Smith defamation JUDGEMENT SUMMARY and FULL JUDGEMENT in pdf

 

[DidakDelight]

Again.
The Plaintiff - as that is what BRS was, he was the one to bring the action to court as he felt he had been wronged - had the opportunity to provide more witnesses.
This idea that they had more that they didnt use in a civil trial is going to turn the tide for BRS is just pure fantasy.

You'd think with millions on the line in the Civil case that his top notch lawyers would have called on them in the first place.

Not arguing the prosecution case. Im arguing this statement by you



Again if his own team did not call on all these members to give evidence then they were pretty ****ing negligent.

A defamation case where truth is a defence is brought by the defendant not the plaintiff..

This isn’t a matter of Roberts-Smith simply “bringing his own witnesses.” In criminal proceedings there is a full disclosure obligation, meaning the prosecution must disclose the entire investigation and all witnesses canvassed, not just those they intend to rely on. That allows the defence to see what evidence exists and determine which witnesses may assist their case.

In the civil trial, only a relatively small number of witnesses gave direct eyewitness testimony about the alleged incidents. Many others were called to provide context, background, or evidence about procedures and patrol practices.

There are also numerous serving and former SAS soldiers who were not called in the civil proceedings. However, it is highly likely that many of them were identified and spoken to by the AFP and the Office of the Special Investigator.

The key difference is procedural. In a civil trial, a party cannot easily subpoena someone if they don’t know who the person is or where they are located. In a criminal prosecution, however, if investigators have already interviewed or identified potential witnesses, that material forms part of the disclosure process. The prosecution must provide that information to the defence, and the court process allows subpoenas to be issued through the court, which can manage service and privacy issues such as personal addresses.

 

[Art Vandelay_]

The comments Ive seen that are critical of the arrest on social media outnumber those praising it by about 25:1

Yeah same. Any link or discussion on it is flooded with people in support.
Lots of comments about one being a soldier and the AFP boss playing soldier (in reference to her participation medals).

 

[FrankGrimes]

agree with the above, not that Facebook is the best place to judge but going to be hard to find 12 jury members who all agree..
most comments I’ve seen all support him.

 

[Lebbo73]

Afghani witnesses/families paid to give evidence. How will that look in court?

Any former SAS soldiers who serve as witnesses against BRS will be discredited in a trial as soon as they take the stand. So you served in Afghanistan. Most likely suffer from PTSD so will automatically be unreliable witnesses.

 

[schneebly111]

Any former SAS soldiers who serve as witnesses against BRS will be discredited in a trial as soon as they take the stand.

In the defamation case he had some of Australia's most expensive defence lawyers, Bret Walker and Arthur Moses, who charge up to $50,000 per day, on his side and their attempt to discredit the SAS witnesses failed big time. Supposedly Stokes has had enough of bankrolling BRS so he's out, Rinehart may stump up some money for a decent lawyer but until then he's got to stump up the money on his own (he's unemployed btw) and whoever he hires is not going to discredit the witnesses if Moses and Walker couldn't.

So you served in Afghanistan. Most likely suffer from PTSD so will automatically be unreliable witnesses.

One of the Federal Court's top Judges Anthony Besanko, 3 senior Federal Court Appeals judges and the full bench of the High Court found all those witnesses to be reliable.

 

[Cold Sober]

He is a National hero AND should always be regarded as one.

 

[schneebly111]

He is a National hero AND should always be regarded as one.

Or a Liar, Bully and War Criminal (can't sue for defamation for saying that!)

What did he ever do to be a national hero? Execute a bunch of random farmers in a war Australia should have never been involved in that had nothing to do with protecting the country?

 

[Cold Sober]

Or a Liar, Bully and War Criminal (can't sue for defamation for saying that!)

What did he ever do to be a national hero? Execute a bunch of random farmers in a war Australia should have never been involved in that had nothing to do with protecting the country?

People like you think 911 was ok.

 

[Lebbo73]

People like you think 911 was ok.

They also support people who despise their way of life.

 

[schneebly111]

Ahhhh the usual ad hominem personal attacks pulled out when you can’t argue on facts anymore.

An Afghan farmer being randomly selected by BRS to be kicked off a cliff had nothing to do with AQ/IS. That Afghan farmer probably never knew a country called “Australia” existed so could never “hate our way of life”

The Australian way of life is (or at least should be) we uphold laws and good behaviour, and just like our trials of Japanese soldiers post WW2 we will hold our soldiers to the same standard.

 

[revo333]

It's a complicated topic. The treatment of the civilians shouldn't be tolerated but it is War after all and I don't think the punishment should be prison.

Not sure why some people are frothing at the mouth for him to be locked up for a long time.

Have heard interviews with two people who went on duty with him and while both didn't strongly defend his actions it appears they were over there longer than they should have been in terrible conditions where thinking straight and rationale would be a very hard thing to do after a while.

 

[schneebly111]

It's a complicated topic. The treatment of the civilians shouldn't be tolerated but it is War after all and I don't think the punishment should be prison.

It’s not really complicated at all. Australian soldiers abide by the Geneva Conventions and we expect others to as well. We tried, convicted and hung Japanese soldiers for murdering prisoners, now we are holding our soldiers to the same standard.

Not sure why some people are frothing at the mouth for him to be locked up for a long time.

Because anyone who commits premeditated murder should be locked up for a long time.

Have heard interviews with two people who went on duty with him and while both didn't strongly defend his actions it appears they were over there longer than they should have been in terrible conditions where thinking straight and rationale would be a very hard thing to do after a while.

Which interview was that? The only soldier who testified they were on the same ops BRS and has been named was Hastie, and he’s certainly not a BRS fan.

And enough of the “they were over there for so many times argument”. By volunteering for the SAS they knew they were going to be deployed at a high tempo, BRS had to have gone through several IMPS so it wasn’t something he didn’t want. Reading the stories of these blokes they were very keen to keep getting deployed.

And as Special Forces they should know more about the rules of engagement than some 19yr old infantry grunt. Can’t use the “morality got blurred” excuse to justify grabbing a bloke, dragging him to the top of a cliff, kicking him off and then executing him.

 

[DidakDelight]

What was successful in the civil trial was the defendants being able to control the narrative around context where they painted the SAS like some rogue cops just patrolling around hunting.

The SAS only ever work intelligence orientated missions, they are the last called in when shit hits the fan.

It’s like SOG in policing, they don’t randomly patrolled, they are requested and every operation is dangerous.

The 21 witnesses line being thrown around is misleading, there is absolutely sweet FA direct eye witness testimony.

The civil trial curiously allowed hearsay 2nd and 3rd hand accounts.

They surely must have found more direct first hand eye witnesses (besides the Afghan ones they mustered through billboards looking for witnesses) or some covert recordings with admissions

 

[schneebly111]

What was successful in the civil trial was the defendants being able to control the narrative around context where they painted the SAS like some rogue cops just patrolling around hunting.
The SAS only ever work intelligence orientated missions, they are the last called in when shit hits the fan.

Pretty much none of what you’ve written is correct.

They were originally tasked with long range reconnaissance however they weren’t satisfied so got given more direct action raids.

It’s like SOG in policing, they don’t randomly patrolled, they are requested and every operation is dangerous.

As the history of the war it wasn’t like that at all. A lot of the time there weren't even shots fired, they basically went into a village and interrogated residents. All missions they undertook were conducted under international laws of armed of conflict

The 21 witnesses line being thrown around is misleading, there is absolutely sweet FA direct eye witness testimony.

This is so false I don’t know where to start. Go read the thread on the SRP board where a poster has done a great job identifying the persons from the defamation action who were direct eyewitnesses, like the 4 for the prosthetic leg killing. Or this:

Ben Roberts-Smith defamation appeal failed because ‘unlike most homicides, there were three eyewitnesses’, judges explain

SAS veteran acted with ‘a certain recklessness or perhaps even brazenness’ when he killed a man with a prosthetic leg in Afghanistan, court finds

www.theguardian.com

The civil trial curiously allowed hearsay 2nd and 3rd hand accounts.

Wow, did they really? The lawyers for the media companies let in illegal hearsay that Justice Besanko, one of the Federal Court’s top judges, was too stupid to catch and rule out? The 3 Federal Court Appeals judges were so blind they missed this on Appeal, and then the full bench of the High Court, Australia’s 7 most senior legal experts, were so dumb they didn’t see this in the case too?

10 of Australia’s most senior judges missed something so plainly obvious to you did they?

They surely must have found more direct first hand eye witnesses (besides the Afghan ones they mustered through billboards looking for witnesses) or some covert recordings with admissions

Maybe they did. But I can guarantee you the AFP and the OSI have studied this case more than you have.

 

[CD Xbow]

They also support people who despise their way of life.

People like you think 911 was ok.

WTF is wrong with you people. Firstly, none of those things you mention have anything to do with the case. Secondly there is credible evidence he ordered prisoners executed. If he did, it is murder. It must be investigated and if he did the acts he is charge with he must be held to account.

 

[DidakDelight]

Pretty much none of what you’ve written is correct.

They were originally tasked with long range reconnaissance however they weren’t satisfied so got given more direct action raids.



As the history of the war it wasn’t like that at all. A lot of the time there weren't even shots fired, they basically went into a village and interrogated residents. All missions they undertook were conducted under international laws of armed of conflict




This is so false I don’t know where to start. Go read the thread on the SRP board where a poster has done a great job identifying the persons from the defamation action who were direct eyewitnesses, like the 4 for the prosthetic leg killing. Or this:

Ben Roberts-Smith defamation appeal failed because ‘unlike most homicides, there were three eyewitnesses’, judges explain

SAS veteran acted with ‘a certain recklessness or perhaps even brazenness’ when he killed a man with a prosthetic leg in Afghanistan, court finds

www.theguardian.com

Wow, did they really? The lawyers for the media companies let in illegal hearsay that Justice Besanko, one of the Federal Court’s top judges, was too stupid to catch and rule out? The 3 Federal Court Appeals judges were so blind they missed this on Appeal, and then the full bench of the High Court, Australia’s 7 most senior legal experts, were so dumb they didn’t see this in the case too?

10 of Australia’s most senior judges missed something so plainly obvious to you did they?

View attachment 2582710



Maybe they did. But I can guarantee you the AFP and the OSI have studied this case more than you have.

Pretty much none of what you’ve written is correct.

They were originally tasked with long range reconnaissance however they weren’t satisfied so got given more direct action raids.



As the history of the war it wasn’t like that at all. A lot of the time there weren't even shots fired, they basically went into a village and interrogated residents. All missions they undertook were conducted under international laws of armed of conflict




This is so false I don’t know where to start. Go read the thread on the SRP board where a poster has done a great job identifying the persons from the defamation action who were direct eyewitnesses, like the 4 for the prosthetic leg killing. Or this:

Ben Roberts-Smith defamation appeal failed because ‘unlike most homicides, there were three eyewitnesses’, judges explain

SAS veteran acted with ‘a certain recklessness or perhaps even brazenness’ when he killed a man with a prosthetic leg in Afghanistan, court finds

www.theguardian.com

Wow, did they really? The lawyers for the media companies let in illegal hearsay that Justice Besanko, one of the Federal Court’s top judges, was too stupid to catch and rule out? The 3 Federal Court Appeals judges were so blind they missed this on Appeal, and then the full bench of the High Court, Australia’s 7 most senior legal experts, were so dumb they didn’t see this in the case too?

10 of Australia’s most senior judges missed something so plainly obvious to you did they?

View attachment 2582710



Maybe they did. But I can guarantee you the AFP and the OSI have studied this case more than you have.

I can guarantee I know more about the AFP and OSI than you do champ..

100% - on the surface it appears to be an ordinary investigation politically pushed. The AFP members hated it and the seconded state police only went for the $$$ and have since jumped ship

They all know they are going to get royally creamed in the box.

All of the heavy lifting was done by state cops with the majority jumping ship 2 years ago. The taskforce Emerald Argon has been staffed by AFP cops with some only ever having worked at the airport being thrown in recently. The AFP have never had an investigation at this scale before the courts, never. Operation Ironside was big, but relied on state police again.

The OSI has provided oversight but really only done the work of what a crown prosecutor otherwise could do.
The whole investigation and prosecution is riddled with problems

Advertising and paying for witnesses in Afghanistan after placing billboards up in Afghanistan speaks for itself

Paying a witness $700k in the civil trial essentially burns them for Criminal trial, not that her evidence was of any relevance and is completely prejudicial and inadmissible in a criminal proceeding…but she will make a great defence witness now in the criminal proceeding

What about the AFP investigation knocked on the head in 2021 by the CDPP deemed too tainted to prosecute..? But now reborn after the civil trial

What about the AFP not interjecting and pushing for a stay in the civil trial knowing witness testimonies could end up tainted and fought bitterly about their admissibility into a criminal court…

Tell me what criminal trial has ever been successful after a civil trial ???

Witness statements taken by the AFP after the civil trial - surely statements were taken in the failed investigation which wrapped up in 2021. These will be disclosed and their differences examined

So much disclosure which will be relevant, with a massive shitfight of PII to not disclose it.

This will be atleast 2 and half years fighting over disclosure material before they ultimately make the decision that they’ re happy to let things settle on the civil finding and withdraw the charges.

Get ready for an embarrassing clusterfart of a shit show..

Don’t forget the denial of plaintiff witnesses in the civil trial ?? You do understand defence can call whatever witness they want in a criminal trial (as opposed to civil) and their evidence only needs to create doubt..

They have zero chance of even getting this to trial and won’t get past committal if they elect to have one

As for your ridiculous comments

So SAS were basically doing low-risk village drop-ins under ROE 429A, knocking on doors and having chats with locals, and the whole “direct action raids” thing just sort of came later because they weren’t satisfied with reconnaissance. That’s the version you think is going to be painted in the criminal trial? Is that where you’re going with this?

Your “no shots fired, just interrogating residents most of the time” line is doing a lot of work isn’t it? These were intelligence-led operations with authorised use of force under ROE 429A, not standing order, actually authorised 429A.. To have ROE429A authorised means risk assessments were conducted and approval via the COC. Calling them “peaceful villages” is a neat bit of framing, but it doesn’t explain why SAS were being tasked into those areas in the first place.

And your “did ten senior judges miss illegal hearsay” point, you’re now arguing with the wrong rulebook. In civil defamation, hearsay is admitted and then “weighed for reliability”.

In criminal trials, it’s excluded, except in extremely specific circumstances. So no, it’s not that your “10 judges” missed something obvious, it’s that they’re applying the permissible civil standards of a civil case.

On eyewitnesses, I’ve read the transcripts, maybe you should too. Their evidence is nowhere near the clean, continuous accounts you’re implying.

What you’ve actually got is fragmented, incident-specific evidence: Person 4 the most direct, Person 7 fragments. Person 10 was present for aspects of key interactions (with gaps in recall), and Person 19 heard or observed certain conduct or commands.

With all the hearsay and a 50% line to cross - of course Besanko found him to be a serial killing narcissistic psycho

You have zero clue and don’t actually understand the difference between criminal and civil procedure, how the Evidence Acts operate in each, or how military ROE and policing snd the justice system work in practice.

 

[Frank Bunn]

Will he get bail?

 

[DidakDelight]

Will he get bail?

Normal state murder charges don’t require a summary during a bail application and rely straight off the charge sheets as to the allegations. I’m not sure about Commonwealth War Crimes murder, but I’d say a summary (not a full brief) is likely to be tendered. In this case you’d expect defence to have an early crack at the evidence with a view of demonstrating, albeit for the purposes of a bail application, that the prosecution case is weak. You’d expect the prosecution at this stage won’t answer too many questions about the evidence in which case the bail decision maker will have to tick that box if it being (at this early stage) weak.

He’s in show cause but will be able to mitigate all of the following risks

• Endanger the public?
• Risk of serious reoffending?
• Flight risk?
• Fail to appear?

With a surety, passport surrender, reporting conditions and even a curfew combined with no prior history, historical allegations, and submission of it being a weak case, I’d say he will highly likely be bailed.

 

[Run n Spread]

I can guarantee I know more about the AFP and OSI than you do champ..

100% - on the surface it appears to be an ordinary investigation politically pushed. The AFP members hated it and the seconded state police only went for the $$$ and have since jumped ship

They all know they are going to get royally creamed in the box.

All of the heavy lifting was done by state cops with the majority jumping ship 2 years ago. The taskforce Emerald Argon has been staffed by AFP cops with some only ever having worked at the airport being thrown in recently. The AFP have never had an investigation at this scale before the courts, never. Operation Ironside was big, but relied on state police again.

The OSI has provided oversight but really only done the work of what a crown prosecutor otherwise could do.
The whole investigation and prosecution is riddled with problems

Advertising and paying for witnesses in Afghanistan after placing billboards up in Afghanistan speaks for itself

Paying a witness $700k in the civil trial essentially burns them for Criminal trial, not that her evidence

This raises a couple of red flags for.me.
1. If there is no.crime scene evidence or local witnesses because Afghanistan is too dangerous who put up the billboards?
If there is a contact point for a witness to.come foward who is the contact point? How does this information relay back to Australia?
This would indicate liasing/collusion with local contacts? But as Afghanistan is ruled by the Taliban are Australians in contact with them for this purpose? Are witnesses coming foward to the Afghan government which is Taliban run?That would be seriously strange and muddy the waters
Why was a witness paid $700k in the civil trial?

 

[Run n Spread]

Will he get bail?

For a murder charge has to prove extraordinary circumstances.
Given this was a foreign jurisdiction it was the first charge of its crime it occurred alledgedly 14-17 years a go and no accusations made in Australia that has occurred and could be 3 years wait plus a 6 month trial id say 60-40 likely that they give bail. No sure thing thou. Plenty of all be it state cases with special circumstances that weren't given

 

[Run n Spread]

• Endanger the public?
• Risk of serious reoffending?
• Flight risk?
• Fail to apappear

Given contacts and his unique skills I'd say he'd be a flight risk.(if he wanted passport or not) would.be the only issue.
Still.courts can't rule like it's a Bond movie and/or speculate wildly
He has been out of Australia and returned while being /previously been investigated has not shown a propensity to flee and if it can't be established who he has contact with than courts would probably favour bail.
Any domestic accusations could be damaging but if that hasn't been formally processed then wont be take into account

 

[DidakDelight]

Given contacts and his unique skills I'd say he'd be a flight risk.(if he wanted passport or not) would.be the only issue.
Still.courts can't rule like it's a Bond movie and/or speculate wildly
He has been out of Australia and returned while being /previously been investigated has not shown a propensity to flee and if it can't be established who he has contact with than courts would probably favour bail.
Any domestic accusations could be damaging but if that hasn't been formally processed then wont be take into account

Prosecution needs to demonstrate flight risk, unique skills not just allege he is a James Bond

For a murder charge has to prove extraordinary circumstances.
Given this was a foreign jurisdiction it was the first charge of its crime it occurred alledgedly 14-17 years a go and no accusations made in Australia that has occurred and could be 3 years wait plus a 6 month trial id say 60-40 likely that they give bail. No sure thing thou. Plenty of all be it state cases with special circumstances that weren't given

You’re on the right track.
Legally there’s no such thing as extraordinary circumstances.

These are commonwealth charges with a state overlay being in a NSW court. There are no Commonwealth bail statutes for state courts.

Show cause is the situation he finds himself in and if he does show cause the court will apply the unacceptable risk test which is will he;

Fail to appear, obstruct justice, interfere with witnesses or is a risk to community safety.

What may work against him and might have been part of the arrest planning , is a lack of permanent residence in NSW and the potential of failing to appear and having to locate and extradite him back to NSW.

A well constructed defence should be able to mitigate these risks , in these specific circumstances

 

[Run n Spread]

Prosecution needs to demonstrate flight risk, unique skills not just allege he is a James Bond

You’re on the right track.
Legally there’s no such thing as extraordinary circumstances.

These are commonwealth charges with a state overlay being in a NSW court. There are no Commonwealth bail statutes for state courts.

Show cause is the situation he finds himself in and if he does show cause the court will apply the unacceptable risk test which is will he;

Fail to appear, obstruct justice, interfere with witnesses or is a risk to community safety.

What may work against him and might have been part of the arrest planning , is a lack of permanent residence in NSW and the potential of failing to appear and having to locate and extradite him back to NSW.

A well constructed defence should be able to mitigate these risks , in these specific circumstances

Exceptional circumstance the language in Victoria rather than extraordinary but that is state.
Where does he live? As it's federal he'd probably be allowed to reside there and undertake he is in Sydney for trial.
It is odd with the state overlay but that is common

 

[daniologist]

Rinehart may stump up some money for a decent lawyer

Except she just had her own loss in court today, now she has to pay back royalties from dear old dad's iron ore mines to dad's former mate. Not that it will make much of a dent in her fortunes...

 

[Frank Bunn]

Normal state murder charges don’t require a summary during a bail application and rely straight off the charge sheets as to the allegations. I’m not sure about Commonwealth War Crimes murder, but I’d say a summary (not a full brief) is likely to be tendered. In this case you’d expect defence to have an early crack at the evidence with a view of demonstrating, albeit for the purposes of a bail application, that the prosecution case is weak. You’d expect the prosecution at this stage won’t answer too many questions about the evidence in which case the bail decision maker will have to tick that box if it being (at this early stage) weak.

He’s in show cause but will be able to mitigate all of the following risks

• Endanger the public?
• Risk of serious reoffending?
• Flight risk?
• Fail to appear?

With a surety, passport surrender, reporting conditions and even a curfew combined with no prior history, historical allegations, and submission of it being a weak case, I’d say he will highly likely be bailed.

Cheers. What about the risk of him influencing potential witnesses? Wasn't that a previous allegation?