How the Ben Roberts-Smith saga sat in an uncomfortable twilight zone for years - and how today changes the stakes completely: PVO

By PETER VAN ONSELEN, POLITICAL EDITOR, AUSTRALIA Published: 07:08, 7 April 2026 | Updated: 07:14, 7 April 2026 War hero and alleged war criminal Ben Roberts-Smith's arrest doesn't immediately resolve the arguments about him.  But it does actually put this matter where it always belonged: before a criminal court, not a civil one. For years this saga has sat in an uncomfortable twilight zone. Roberts-Smith lost his defamation case back in 2023 when Justice Anthony Besanko found, on the balance of probabilities, that key murder allegations arising from his service in Afghanistan were substantially true. He then lost his appeal in the Full Federal Court in May last year, before the High Court refused special leave in September.  Now Roberts-Smith has been arrested and is expected to face five war crime murder charges tied to alleged killings in Afghanistan between 2009 and 2012. While the civil findings were devastating to his reputation, they were not criminal convictions.  The legal threshold that sank him in the civil court was not proof 'beyond reasonable doubt'.  It was the much lower civil standard of 'on the balance of probabilities'.  That is to say, a slightly higher probability than a coin toss.  Ben Roberts-Smith has been arrested over multiple alleged war crimes Think about that for a moment before you jump to judgment in this case, or extrapolate any other civil finding for that matter. Yet in the court of public opinion, and often in media coverage too, Roberts-Smith has effectively been treated as though the criminal question has already been settled. It hasn't, but it will be now. If Roberts-Smith is telling the truth when he says he's innocent, he should welcome today's development, grim as it plainly will be.  A criminal prosecution is not something anyone sensibly celebrates. The ordeal ahead will be immense. For the nation too, given that Roberts-Smith is a Victoria Cross recipient.  But if he didn't do what has long been alleged, then this is the process that gives him the only outcome that can truly change the narrative around him. If the prosecution can't prove its case beyond reasonable doubt, and Roberts-Smith is found not guilty, then he remains an innocent man, the presumption having been properly tested. That's how the system works.  But if he's convicted, then the civil case was a precursor to justice, not an extrapolated finding that prematurely cast a shadow over an innocent man. A not guilty verdict after a full criminal trial would supersede the current balance-of-probabilities narrative that has hung around Roberts-Smith's neck ever since his defamation loss. Australian Federal Police Commissioner Krissy Barrett (left), and OSI Director Investigations Ross Barnett spoke to media following his arrest It wouldn't mean that the allegations were never made, of course, or that the civil proceedings never happened.  But it would mean that the state, once required to prove the allegations to the criminal standard, failed to do so.  This is not a minor procedural matter, especially in a world where allegations are too readily treated as fact. Conversely, the reverse is true – and just as critical. If Roberts-Smith did commit these horrendous crimes, and if that's proven beyond reasonable doubt in a criminal court, then the ambiguity ends there too.  Roberts-Smith becomes a verifiable war criminal, end of debate, assuming the appeals system doesn't overturn such a finding. At that point the criminal law would have caught up with what the civil findings had already indicated on a lower threshold. But that hasn't happened yet, and might not.  If it does, the public language around Roberts-Smith would harden - because it should. Those who have lent too heavily into his guilt, based on the civil finding, would have their assumptions justified post fact. A criminal conviction would legitimise, fully and properly, the bluntest possible description of what Roberts-Smith is. Pictured, then-Australian Prime Minister Malcolm Turnbull with Ben Roberts-Smith VC during the Australian of The Year Awards 2016 Today's arrest is step one in moving this matter from inference, probability and reputational collapse into the only forum that can conclusively answer the question Roberts-Smith has spent years contesting, one way or the other. He has always said he's innocent. That claim will now be properly tested. This is the high-profile stage the country needed, though it may descend into theatricality before judgement day.  For Roberts-Smith, it offers the possibility of an exoneration that the civil process never could.  For the public, it offers something the long years of reporting, litigation and arguments have never been able to properly test. And when allegations as grave as these are made, the accused deserves the presumption of innocence, and a beyond reasonable doubt test. Because that's precisely what all of us would want if we were ever required to stand trial. Sorry we are not currently accepting comments on this article.