In early April, one of Australia’s most decorated soldiers, Ben Roberts-Smith, was arrested and charged with five war crimes of murder.

These charges were brought under the Commonwealth Criminal Code Act.

On Friday, a bail hearing was held in Sydney. Roberts-Smith appeared remotely from custody and his lawyers requested bail in person.

The judge granted Roberts-Smith bail based on “exceptional circumstances”.

The allegations and the arrest

The allegations against Roberts-Smith relate to five separate killings of people in various locations in Uruzgan Province, Afghanistan in 2009 and 2012, where he served with the Australian Special Forces (the Special Air Service regiment, also known as “the SAS”).

Read more: Ben Roberts-Smith is accused of 5 war crime murder charges. How did we get here?

These allegations were already known in the media and through the failed defamation case that Roberts-Smith brought against Nine Entertainment.

The wider context of the alleged offending came to light in 2020 following the release of the Brereton Report which found credible information that members of the SAS had committed war crimes during operations in Afghanistan between 2005 and 2016.

On April 7, Roberts-Smith was arrested at Sydney Airport by Australian Federal Police officers and taken into protective custody in Silverwater Prison.

What makes bail so important?

A day after his arrest, a remote bail hearing took place. Roberts-Smith’s lawyer did not request bail. It is unclear why. Bail was then requested at a hearing on April 17.

Bail is an important aspect of fair trial. Courts must consider the rights of the accused, such as the right not to be punished prior to being found guilty.

But courts must also........

© The Conversation