Latest / The Morning Edition / Nick McKenzie on the arrest of Ben Roberts-Smith

Transcript

Nick McKenzie on the arrest of Ben Roberts-Smith · The Morning Edition

0:01
S1: It will be alleged the man was a member of
0:03
S1: the ADF when he was involved in the death of
0:06
S1: Afghan nationals between 2009 and 2012, in circumstances that constitute
0:12
S1: war crimes under the Commonwealth Criminal Code.
0:16
S2: War hero Ben Roberts-Smith was arrested by the Australian Federal
0:20
S2: Police today, relating to numerous allegations of murdering unarmed Afghan
0:25
S2: civilians and prisoners during the war in Afghanistan. This arrest
0:30
S2: comes after a quiet five year long investigation into Robert Smith,
0:34
S2: which reportedly involved tapped phones, listening devices and raids by
0:39
S2: detectives in the secretive Office of Special Investigations. I'm Samantha Morris,
0:45
S2: and you're listening to Morning Edition from The Age and
0:47
S2: The Sydney Morning Herald today, investigative reporters Nick McKenzie and
0:52
S2: Michael Bachelard on how this arrest unfolded and what happens next.
1:03
S2: Welcome Nic and Michael to the podcast.
1:06
S3: Thank you. Good to be here.
1:07
S2: Nic, I'll start with you. Listeners may not know how
1:10
S2: long you've been wrestling with this matter. It's been nine
1:12
S2: years since you and your Co-reporter, Chris Masters started investigating
1:16
S2: and publishing stories about these war crime allegations against Ben Roberts-Smith. Now,
1:21
S2: you were both pilloried by politicians and radio shock jocks
1:25
S2: for these stories about a war hero of Victoria Cross winner.
1:29
S2: And you received threats of violence from veterans who believed
1:32
S2: that your reporting amounted to a treasonous attack on the
1:35
S2: Anzac legend itself. Then you faced a difficult court case
1:39
S2: because Ben Roberts-Smith sued our mastheads for defamation. Now our
1:43
S2: mastheads won that case. But you've written that the reporting
1:46
S2: and the case left you in, at times a state
1:49
S2: of panic, and you wondered even if it might just
1:52
S2: destroy your reputation. And now, of course, today we have
1:55
S2: this development with Ben Roberts-smith's arrest. So first off, Nick,
2:00
S2: what is your reaction?
2:03
S4: It's obviously a historic outcome today. Um, but it's a
2:08
S4: it's a grim day because ultimately, despite all that work
2:10
S4: we've done, we don't want to wake up and see
2:13
S4: an Australian war hero accused of the most egregious war crimes. However,
2:19
S4: these war crimes, the allegations are what SAS soldiers who
2:23
S4: served with Robert Smith in Afghanistan, sometimes multiple deployments. Some
2:27
S4: of these eyewitnesses are decorated. They said they saw Robert
2:31
S4: Smith allegedly engage in the execution of Afghan prisoners, detainees.
2:37
S4: And as grim as that is, if that's what's occurred,
2:40
S4: our system of justice requires that Ben Roberts-Smith be held
2:42
S4: to fully to account. And that means entering the criminal
2:44
S4: justice system. So that that is as grim as it
2:48
S4: is a welcome development. And there is relief for those
2:52
S4: SAS soldiers who had the bravery to fight for their
2:55
S4: country in Afghanistan, and then the moral courage to speak up,
2:58
S4: to assist not only journalists like us, but also to
3:01
S4: work with the office of the special investigator, the AFP,
3:04
S4: to to bring these very troubling allegations to light.
3:08
S2: And can you actually bring us up to speed with
3:10
S2: what's happened today and how this arrest has unfolded?
3:14
S4: Robert Smith was flying in from Brisbane to Sydney with
3:16
S4: his young daughter's school holidays, unaware that waiting for him
3:23
S4: on the tarmac and at the arrival gate were detectives
3:26
S4: of the Federal Police and the office of the Special Investigator,
3:28
S4: the Anti War Crimes Agency. He was unexpectedly to him
3:33
S4: arrested on the plane, taken down, loaded into a police
3:37
S4: car and taken into custody where he learned he was
3:39
S4: facing five war crimes and murder charges, including the most
3:43
S4: infamous of all those the death of a of a
3:45
S4: man called Ali Jan in Afghanistan in September 2012. A
3:50
S4: really a shocking development. Never has such a high profile
3:53
S4: decorated soldier, not just in Australia but in the Commonwealth states.
3:57
S4: Faced so many serious criminal charges.
4:01
S2: And is that why, in your reporting, you've said that
4:03
S2: this could be the most significant war crimes prosecution in
4:06
S2: Australian history? Or is it for other reasons?
4:09
S4: Well, I think it is the most it will be
4:12
S4: the most significant war crimes prosecution in Australian history, certainly
4:15
S4: in Australian modern history. There's no equivalent because nobody who
4:20
S4: has been so decorated has ever faced such serious war
4:25
S4: crimes charges. This is a man in Robert Smith who
4:29
S4: received the Victoria Cross for acts of bravery. This is
4:32
S4: a man who is the face of the Afghan conflict. He.
4:36
S4: His uniform and decorations are still in glass cabinets at
4:41
S4: the Australian War Memorial. He counts as his supporters, billionaire
4:45
S4: media moguls and other wealthy business people, senior politicians and
4:51
S4: still large parts of the Australian community. And yet now
4:54
S4: here he is in a holding cell awaiting a criminal
4:57
S4: justice trial process that will take some years.
5:00
S2: And Michael, just over to you for a moment. I
5:02
S2: wanted to get into the particulars of what Ben Roberts-Smith
5:05
S2: has actually been arrested for. Nick, of course, has mentioned
5:09
S2: one alleged execution. What are all of the specific allegations here?
5:14
S3: So there are five different charges that the police say
5:17
S3: they're going to lodge for a particular crime called war, crime, murder.
5:22
S3: A number of them are for murders that he allegedly
5:26
S3: carried out himself and others for aiding, abetting, counselling or
5:31
S3: procuring murders. That is, he's ordered allegedly, other people in
5:37
S3: his charge to conduct those murders. One of them, as
5:40
S3: Nick says, is of a man called Ali Jan, a farmer,
5:44
S3: poor farmer in a village called Dawan who was in
5:48
S3: the village to collect flour, but who ended up on
5:51
S3: the wrong side of Ben Roberts-Smith and was allegedly kicked
5:53
S3: off a cliff and Robert Smith then ordered another man
5:57
S3: to murder him. There are two that emerge out of
6:00
S3: a 2009 operation to clear a compound called whiskey 108,
6:05
S3: one of which, uh. It's alleged that Robert Smith machine
6:09
S3: gunned the man himself and the other one, another blooding
6:13
S3: of a. They call it a blooding of a rookie.
6:16
S3: A new soldier was ordered by Robert Smith, allegedly to
6:20
S3: shoot a man, uh, prisoner in cold blood. Um, and
6:24
S3: then two emerged out of another operation in 2012 in
6:27
S3: a place called Sialkot. Um, one, uh, it's alleged there
6:33
S3: that Robert Smith, uh, took two prisoners away from a,
6:37
S3: from a house, uh, with a rookie, uh, he allegedly
6:43
S3: ordered the rookie to kill one of them, and the
6:45
S3: other one was murdered in company. It's not clear exactly
6:50
S3: what the allegation is there from the documents we have
6:52
S3: so far, but they're the five. There were others, one
6:56
S3: other that were talked about in the defamation case that
6:59
S3: the judge in the defamation case found proven to the
7:02
S3: civil standard and others that were alleged in the defamation
7:06
S3: case that have not made it to the police charges.
7:08
S2: And, Nick, we know that Ben Roberts-Smith has strenuously denied
7:12
S2: these allegations. So what has he said today, if anything,
7:15
S2: about his arrest or expected criminal charges?
7:18
S4: Well, he's in custody. He's said nothing and he's not
7:21
S4: able to say anything. That may change during the course
7:23
S4: of the evening or in the coming days. We can
7:26
S4: expect denials. We we know that that's been his position
7:29
S4: now since 2017. A very powerfully voiced, aggressively maintained denials.
7:37
S4: He fought an entire defamation action based on the proposition
7:40
S4: that he never did anything wrong in Afghanistan. And we
7:44
S4: can expect those similar denials to take place in the
7:47
S4: criminal justice process as it unfolds in the coming months
7:50
S4: and years.
7:50
S2: And Michael, do we know yet what police have discovered
7:53
S2: in this investigation that they've been conducting into Ben Roberts-Smith
7:56
S2: since 2021? That means that they have met the threshold
8:00
S2: to be able to bring these charges, because Ross Barnett,
8:03
S2: director of investigations of the office of the Special Investigator,
8:06
S2: said on Tuesday that numerous other investigations into Australian military
8:11
S2: conduct in Afghanistan have not met the threshold to press charges.
8:16
S3: Look, we don't know exactly what they've found, but we
8:18
S3: can surmise that some of the witnesses that gave evidence
8:21
S3: in the defamation case are and many of those were
8:24
S3: sass witnesses that gave evidence for the newspaper in in
8:29
S3: defence of of our contention that the that that the
8:32
S3: stories that we'd written were true. There were 21 SAS
8:35
S3: soldiers or former soldiers who gave evidence for the newspapers
8:38
S3: in that case. And so we can surmise that a
8:41
S3: lot of the evidence that the police have emerges from
8:45
S3: the same sources. There were also a couple of people,
8:49
S3: soldiers in that case, who declined to give evidence in
8:53
S3: the civil case because it might implicate them in, uh,
8:56
S3: in murder. And open them up to being charged themselves.
9:00
S3: So it may be the case that the police have, uh,
9:03
S3: got them to speak. It's worth pointing out here, I think, Sam,
9:07
S3: that it's perhaps unlikely that we would have seen these
9:12
S3: charges either without Nick and Chris's reporting. And I can
9:16
S3: say this, Nick perhaps can't in all modesty, but that
9:18
S3: the profoundly excellent and brave reporting that Nick and Chris
9:22
S3: did over many years brought this to light and kept
9:25
S3: it in the public eye. The defamation case brought by
9:28
S3: Ben Roberts-Smith against the newspapers to try and defend his reputation,
9:33
S3: actually brought 21 soldiers out of the woodwork to give
9:37
S3: evidence against him. And it's, as I say, not a
9:41
S3: stretch to imagine that that evidence forms the basis of
9:44
S3: the police case. Criminal case against him. Now. That trial
9:48
S3: went for 110 days. Um, he had 12 SAS soldiers
9:53
S3: on his side. But, you know, the the he was
9:56
S3: found to the civil standard in the defamation case to
9:59
S3: be a war criminal. And I think, you know, it's,
10:04
S3: it pays us to pause at this moment and say
10:07
S3: without this kind of brave investigative reporting, without that defamation
10:11
S3: case and the incredibly expensive and risky, um, endeavor that
10:16
S3: that this organization undertook to defend, that we might or
10:21
S3: might not find ourselves here today?
10:23
S2: Absolutely. I mean, it was a $25 million case. Uh,
10:27
S2: as many listeners will remember and as you say, courageous reporting. So, Nick,
10:32
S2: this is perhaps a very basic question, but if Ben
10:34
S2: Roberts-Smith is charged and faces court, what is the process
10:38
S2: from here? Like, will the case be heard in a
10:40
S2: special court? Or what can we expect to see?
10:43
S4: The charge of war crimes, charge of murder as part
10:47
S4: of the Commonwealth Criminal Code can be heard in the
10:49
S4: Supreme Court of New South Wales. Presumably that's where it
10:52
S4: will be heard. And I presume that goes to to
10:55
S4: some reason as to why he was arrested in New
10:57
S4: South Wales today rather than his home in Brisbane, although
11:02
S4: he may apply to be tried in that state and
11:05
S4: there might be pushed back there. What happens next? He'll
11:09
S4: either go through a committal process, or the evidence will
11:11
S4: be looked at by a judge and assessed as to
11:14
S4: whether the Commonwealth Director of Public Prosecutions has made the
11:17
S4: right call, and that the evidence is such that there's
11:19
S4: a reasonable chance of conviction and therefore should go before
11:22
S4: a jury, or it can be directly presented to a jury.
11:25
S4: A jury will then look at and weigh that evidence
11:28
S4: to the standard of beyond reasonable doubt. It's a huge bar.
11:32
S4: It's a high bar to reach. It's an unusual trial.
11:35
S4: We know that complex criminal trials are difficult enough, and
11:40
S4: knowing what a jury may or may or may not do.
11:42
S4: But added to this is a range of emotions that
11:46
S4: will no doubt impact affect this trial. This is a
11:48
S4: man highly decorated, a man who still commands the support
11:52
S4: of parts of the Australian public. A man who some
11:57
S4: people say and will say, regardless of the evidence, has
12:00
S4: been unfairly dealt with or is a scapegoat. These are
12:04
S4: all things emotions that can impact or sway a jury
12:08
S4: to look away from otherwise compelling evidence. But ultimately, we
12:11
S4: can have faith in the justice system, whatever the jury
12:13
S4: finds guilty or not guilty. Robert Smith is finally being
12:16
S4: held to account. He's finally going before an extensive, exhaustive
12:21
S4: criminal justice process. And if he's found guilty and still
12:24
S4: maintains his innocence, then of course he has the right
12:27
S4: to appeal.
12:28
S2: And Nick, the recently retired special investigator and former judge
12:32
S2: Mark Weinberg, once said that few of any Australian servicemen
12:35
S2: have been convicted by an Australian court or military tribunal
12:39
S2: of serious war crimes. So how difficult is it to
12:43
S2: prove an allegation like murder occurred in the middle of
12:46
S2: a war zone?
12:47
S4: Well, I think the answer to that lies a bit
12:49
S4: in your question. It happened in the middle of a
12:51
S4: foreign war zone where thousands of kilometres away, the normal
12:54
S4: things you would adduce in a homicide case, the murder weapon,
12:59
S4: the body, a forensic evidence gathered at the crime scene.
13:02
S4: We can't rely on on any of that. That won't
13:05
S4: be coming out. The investigators can't go to Afghanistan because
13:09
S4: it's under Taliban control. Now, what the investigators, the prosecutors
13:13
S4: will rely on is the testimony of those who were
13:16
S4: there with Robert Smith, his fellow soldiers. This case were
13:19
S4: predicated on the testimony of those soldiers. Will they be
13:23
S4: believed by a jury? But it must be said they
13:25
S4: were there. They fought like him in Afghanistan for their country,
13:29
S4: displaying that bravery of which all Australians can be, can
13:32
S4: be proud. They came back to Australia and had the
13:34
S4: moral conviction to speak up and against what they say
13:37
S4: they witnessed.
13:38
S2: And finally, Nick, I mean, has something shifted culturally here
13:42
S2: in Australia, do you think? And perhaps even globally in
13:45
S2: Western countries in terms of how we treat soldiers conduct
13:48
S2: in wartime? Because you've written in a piece that was
13:51
S2: just published this morning that even if he isn't found guilty,
13:56
S2: you know, this is going to divide society to a
13:58
S2: certain degree. So I guess just tell us a bit
14:01
S2: more about that.
14:02
S4: We live in complicated times, and unfortunately, our society, I think,
14:06
S4: is more divided than ever. We've got misinformation, disinformation, propaganda
14:11
S4: that's that's pushed out there. We've had people like Pauline
14:14
S4: Hanson come and even after Robert Smith was found to
14:18
S4: have engaged in war crimes by the federal court, albeit
14:21
S4: not to the criminal standard, that's yet to come. And
14:23
S4: we don't know what outcome that will produce. But after
14:26
S4: the federal court found overwhelmingly he did these terrible acts.
14:31
S4: Pauline Hanson coming out and saying he's a hero. Hold
14:33
S4: your head up high. Ben Roberts-Smith. I think that goes
14:36
S4: to just how divisive and emotional this issue is in
14:41
S4: parts of our society, and our society is fracturing more
14:45
S4: and more and more. The commissioner of the AFP was
14:48
S4: at pains to say in her press conference, and I
14:50
S4: think she she was extremely eloquent and courageous that Robert Smith,
14:55
S4: it must be remembered. The allegations involve the execution allegedly
14:58
S4: of unarmed Afghans, detainees, and also that this should not
15:04
S4: taint the rest of the Australian Armed Forces armed services
15:08
S4: and that Australians should rally around the men and women
15:12
S4: who serve in the Defence Force, people of whom we
15:15
S4: can be rightly proud. The reason, the fact that we
15:19
S4: have a commissioner pushing that, it just tells us how
15:23
S4: much of a tinder box this whole issue is, and
15:26
S4: how emotional and divisive it has been and will yet be.
15:31
S2: Well, we're so lucky for all of the time that
15:33
S2: you've put into this investigation. And Michael, you've also been
15:36
S2: reporting on this for quite a long time. So thank
15:38
S2: you so much both for your time.
15:40
S4: Great to be with you.
15:41
S3: Thanks very much, Sam.
15:45
S2: Today's episode of The Morning Edition was produced by Tammy Mills,
15:49
S2: with technical assistance by Josh towers. Tom McKendrick is our
15:53
S2: head of audio. The Morning Edition is a production of
15:56
S2: The Age and The Sydney Morning Herald. To support our journalism,
16:00
S2: subscribe to us by visiting The Age or Smh.com.au. Subscribe
16:06
S2: and sign up for our Morning Edition newsletter to receive
16:09
S2: a comprehensive summary of the day's most important news, analysis
16:13
S2: and insights in your inbox every day. Links are in
16:17
S2: the show notes. I'm Samantha Selinger Morris, this is the
16:21
S2: Morning Edition. Thanks for listening.