Ben Roberts-Smith is seeking public funding for his criminal defence after being charged with war crimes over the alleged murders of five unarmed detainees in Afghanistan.
The former Special Air Service corporal has applied for funding from the Afghanistan Inquiry Legal Assistance Scheme to cover his criminal defence, but has not yet received approval.
Roberts-Smith is expected to apply for bail at a hearing in Sydney’s Downing Centre Local Court on Friday.
The legal assistance scheme is administered by the Commonwealth Attorney-General’s Department. It provides financial assistance for reasonable legal representation and related costs, such as administration costs and travel, to eligible members or former members of the Defence Force.
Roberts-Smith was arrested at Sydney Airport last Tuesday after a joint investigation between the Office of the Special Investigator (OSI) and the Australian Federal Police (AFP).
Those eligible for funding from the scheme include current or former ADF members “charged with a crime in relation to matters that are the subject of the AFP or OSI Afghanistan investigation”.
Caps apply to the amount that may be recovered under the scheme. According to the most recent rates available publicly, dated September 2021, the maximum rate for a senior solicitor including a partner is $550 an hour up to a maximum daily rate of $3000 for six hours.
“Work undertaken by a firm of solicitors must be undertaken at the lowest appropriate level in the firm and billed accordingly,” an assessment of costs document says.
Roberts-Smith was charged last week with five counts of the Commonwealth offence of war crime – murder over the alleged killing of five unarmed detainees while he was on deployment in Afghanistan between 2009 and 2012. The offences must be tried before a jury, and carry a maximum penalty of life imprisonment.
Three of the five counts involve an allegation of aiding, abetting, counselling or procuring the offence of war crime – murder. In addition, he is charged with one count of war crime – murder, and one count of joint commission of war crime – murder.
Under the offence, the alleged perpetrator must cause the death of a person who was “neither taking an active part in the hostilities nor are members of an organised armed group”, when they knew or were reckless about the circumstances establishing that the person was not engaged in hostilities.
The alleged perpetrator’s conduct must also take place “in the context of … an armed conflict that is not an international armed conflict”.
The offence does not apply if “the death of the person or persons occurs in the course of, or as a result of, an attack on a military objective” and the alleged perpetrator did not expect the attack would result in the “the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated”.
It must also be “reasonable in all the circumstances” for the alleged perpetrator not to have had that expectation.
Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.
