The AFP has dropped criminal investigations around Ben Roberts-Smith

The AFP's criminal investigation into Ben Roberts-Smith has been dropped over concerns around the admissibility of some evidence.
Ben Roberts-Smith criminal investigation dropped

The Australian Federal Police’s criminal investigations concerning former Australian soldier Ben Roberts-Smith have been dropped over concerns about the evidence. This was first reported by the Nine newspapers earlier today.

The investigations related to two alleged murders carried out by Australian special forces that allegedly involved Roberts-Smith, who denies all wrongdoing.

Instead, a new inquiry led by members of the AFP and an independent government agency will investigate the matters.

Background on the Ben Roberts-Smith case

Earlier this month, Ben Roberts-Smith lost a defamation case against three Australian newspapers, which alleged he had committed war crimes in Afghanistan.

The judge ruled against Roberts-Smith after being satisfied some of the claims were “substantially true”.

This was not a criminal case and was separate from the AFP’s investigation.

The Ben Roberts-Smith investigation

The AFP has been gathering evidence related to possible war crimes performed by Australians in Afghanistan from 2005 to 2016.

They largely focused on two events resulting in three alleged murders, in which Roberts-Smith was accused of being involved (he denies this).

The AFP interviewed Roberts-Smith as a suspect, but no charges were laid against him.

In 2020 and 2022, the AFP submitted evidence to a federal prosecutor.

However, the AFP was told in March (but it hasn’t been made public until now) that they wouldn’t be prosecuting war crimes offences based on the evidence provided to them.

This is due to a legal principle called ‘use immunity’.

Use immunity

‘Use immunity’ is a legal principle used to protect witnesses giving evidence.

It prevents individuals who are compelled to give evidence in special settings, such as for an official report, from that evidence being used against them in criminal proceedings.

This means people who gave evidence for a previous report cannot have that evidence used against them in a criminal case.

What’s next?

A new inquiry by the AFP and the Federal Office of the Special Investigator (OSI) will now examine the matters.

OSI was formally established in 2021 to assist with investigations related to alleged war crimes by Australian forces in Afghanistan.

The AFP said the new inquiry was now the “appropriate framework to investigate these matters”.

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