Opinion: From Inquiry to Charges — Understanding the Path to the Roberts-Smith Prosecution
- Brian AJ Newman LLB
- 5 days ago
- 3 min read
By Brian AJ Newman
Having examined the Inspector-General of the Australian Defence Force Afghanistan Inquiry Report (2020), the Afghanistan Inquiry Reform Plan (30 July 2021), and the Afghanistan Inquiry Reform Program Closure Report (2023–24) as part of my Master of International Laws, I approach this issue through structure and process—not assumption or speculation.
To properly understand what is happening now, it helps to follow the sequence of events clearly:
Allegations → Inquiry → Findings → Referral → Investigation → Charges → Trial
The recent murder charges against Ben Roberts-Smith sit at the end of that sequence, not the beginning.
Allegations Led to an Independent Inquiry
The starting point was a series of allegations concerning conduct during Australia’s operations in Afghanistan.
Rather than ignore or internally suppress those concerns, Defence initiated an independent inquiry through the Inspector-General of the Australian Defence Force. Its purpose was narrow but critical:
Was there substance to the allegations?
The Inquiry Made Findings — Not Criminal Determinations
The IGADF Afghanistan Inquiry Report (2020) did not determine guilt. It was not a criminal trial.
What it did find was:
“credible information of 23 incidents in which… persons… were unlawfully killed… involving a total of 39 individuals killed”
That threshold matters.
“Credible information”:
is not proof beyond reasonable doubt,
but is sufficient to justify further investigation and referral.
The Inquiry also made a particularly significant observation:
“none of these are incidents of disputable decisions made under pressure in the heat of battle”
From an international law perspective, this finding is important—it removes reliance on confusion or battlefield pressure as an explanatory factor.
The Reports Acknowledge Systemic Failure
The Afghanistan Inquiry Reform Plan (2021) addresses how such conduct could arise.
It states:
“misconduct… cannot occur unless there have been serious and systemic organisational and cultural failings”
This is a crucial distinction:
The Inquiry identifies institutional and cultural failure
It does not determine individual criminal guilt
Those are separate questions that must be addressed in different forums.
Matters Were Referred to Independent Investigators
Once credible information was identified, Defence did not prosecute the matters itself.
Instead, the Closure Report (2023–24) confirms:
“the Australian Government established the Office of the Special Investigator… to investigate the commission of criminal offences… arising from… breaches of the Laws of Armed Conflict”
This step is fundamental.
It ensures:
independence from Defence,
adherence to criminal law standards,
proper evidentiary scrutiny.
At this point, the matter moves from institutional review into the criminal justice system.
Charges Reflect a Legal Threshold — Not a Finding of Guilt
The charges now brought against Ben Roberts-Smith arise after:
extensive inquiry,
referral,
and independent investigation.
They are not proof of guilt.
They reflect a legal determination that:
There is sufficient evidence to justify a criminal trial.
Presumption of Innocence Remains Central
This cannot be overstated.
I do not know whether Ben Roberts-Smith is guilty.These reports do not determine that question.
He is entitled to:
the presumption of innocence,
a fair and impartial hearing,
the full protection of due process.
That principle remains absolute.
A Separate Track: Institutional Accountability
The reform process also created a parallel pathway for addressing harm.
The Closure Report (2023–24) confirms:
“recommendations to pay compensation… where there is credible evidence of unlawful killing… without it being contingent on the establishment of criminal liability”
This reflects a broader accountability model:
Courts determine criminal guilt
Institutions address systemic failure and harm
These processes operate independently, but at the same time.
This Outcome Was Built Into the System
When these reports are read together, they describe a deliberate process:
Allegations are raised
An independent inquiry tests their substance
Credible matters are identified
Those matters are referred externally
Independent investigations occur
Charges are laid where appropriate
The current prosecution is the result of that process working as designed.
Final Observation: Let the Process Do Its Work
This is a confronting moment.
It raises difficult questions about:
service,
accountability,
and national identity.
But the issue is not whether people feel strongly about it.
The issue is whether the system can:
investigate serious allegations properly,
maintain fairness,
and allow courts—not public opinion—to determine outcomes.
That is what is now happening.
Not in commentary. Not in speculation.
But in a courtroom—where the standard is proof beyond reasonable doubt. And that is exactly where this belongs.
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