It may therefore be useful to set out, in summary form, the present position.

Roberts-Smith’s defamation proceedings against Nine Entertainment — publisher of The Sydney Morning Herald and The Age — were among the most extensive in Australian legal history. The proceedings concerned articles published in 2018 alleging, among other matters, involvement in the unlawful killing of unarmed Afghan detainees, bullying within the SAS, and an incident of domestic violence.

In 2023, following more than 100 hearing days, Justice Anthony Besanko dismissed Robert-Smith’s defamation claim. His Honour found that a number of the central imputations were substantially true on the civil standard of proof, including findings that Roberts-Smith was involved in the unlawful killing of unarmed Afghan detainees.

His Honour also accepted evidence of a pattern of bullying conduct towards other soldiers, and was critical of Roberts-Smith’s reliability as a witness in a number of respects.

The allegation of domestic violence was not upheld. The court was not satisfied, on the balance of probabilities, that the specific assault alleged had been established.

Those findings have since been the subject of appellate consideration and remain undisturbed. It is, however, necessary to emphasise that these were civil proceedings. The applicable standard was the balance of probabilities, and the consequences were confined accordingly.

This week, Roberts-Smith was charged by the Australian Federal Police with five counts of war crimes, namely murder, arising from alleged incidents in Afghanistan between 2009 and 2012. The matter is presently before the courts.

No criminal trial has yet commenced. When it does, the prosecution will be required to prove each charge beyond reasonable doubt. Roberts-Smith has indicated that he will contest the charges and is entitled to the presumption of innocence.

Allegations of bullying within the SAS were explored in detail in the defamation proceedings. A substantial body of evidence was led from current and former personnel describing conduct characterised as intimidation or coercion. His Honour accepted key aspects of that evidence. At the same time, other witnesses gave evidence in Roberts-Smith’s support, reflecting a degree of division within the veteran community.

It is against that background that the “scapegoat” contention has been advanced. Some commentators, including certain veteran voices and media outlets, contend that Roberts-Smith has been unfairly singled out. Reliance is placed upon his distinguished service record, including the Victoria Cross, the operational realities of special forces deployments, and asserted concerns as to the reliability or motives of particular witnesses.

A contrary view places weight on the extent of the evidence considered in the defamation proceedings, as well as findings arising from the Brereton Inquiry, which identified broader issues within Australian special forces operations in Afghanistan. On that view, the present case is not isolated but sits within a wider framework of investigation and accountability.

The matter has, in consequence, become a polarising one.

What can presently be stated is that serious findings have been made in civil proceedings and have survived appellate scrutiny. The criminal proceedings now before the courts involve distinct questions to be determined according to a higher standard of proof and under different evidentiary constraints.

A number of factors may bear upon the conduct and outcome of those proceedings.

The alleged events occurred more than a decade ago, with the attendant difficulties that arise in relation to recollection and witness availability. The prosecution case is likely to depend in significant part upon witness testimony, much of which has already been ventilated in earlier proceedings and will be subject to closer forensic examination in a criminal context. There are also potential complexities associated with classified material, operational sensitivities, and the management of pre-trial publicity.

In those circumstances, the ultimate determination of the criminal charges against Ben Roberts-Smith will depend upon the evidence as it is presented and tested at trial. That process could extend well into 2027.