A former SAS soldier charged with a war crime while serving in Afghanistan has sought bail claiming his safety could be at risk from Islamic terrorists while behind bars.
The man, who cannot be named for legal reasons, was arrested by the Australian Federal Police last Monday and has spent a week behind bars.
He has been charged with the unlawful killing of an Afghan man in a wheat field while deployed as a member of the Australian Defence Force.
The man sought bail on Monday in Sydney’s Downing Centre Local Court, where his barrister Phillip Boulten SC argued he faced serious risks to his personal safety and had to be segregated from other inmates.
“Wherever this man is going to be held in prison, he is likely to have to mix with people in prison who sympathise with the Taliban or with other Islamic extremist groups,” Mr Boulten said.
“This is a case of an ex-army officer being in prison charged with this crime. He is extremely vulnerable where he is at the moment.”
The alleged incident was aired on an ABC Four Corners episode in March 2020. After the broadcast, then-defence minister Linda Reynolds referred the matter to the AFP.
The soldier was suspended from duty and later terminated from the ADF on medical grounds. As part of the AFP investigation, officers searched his home in May 2022.
This is the first time a serving or former Australian defence force member has faced a war crime charge of murder under domestic law.
Mr Boulten urged the court to suppress the ex-soldiers name and where he lived, saying this information could pose a danger if publicly revealed, particularly as the Taliban was now the lawful government of Afghanistan.
“There is a state actor who has an interest in what he did in their country, and (there) are literally hundreds if not thousands of people in custody who would be set against him for what he did.”
Defence personnel need a comprehensive protection of their identities both while they served and afterwards, Magistrate Jennifer Atkinson heard.
The man, who appeared by video link wearing prison greens, posed no risk to the community, having lived a lawful life in Australia, and could be released on bail before trial, the barrister argued.
He said the ex-soldier remained in the country without fleeing despite knowing he was under investigation for years and up to $1 million in surety could be offered to ensure he turned up to court.
The man would also have difficulty consulting with lawyers from behind bars, given security measures put in place concerning material relevant to the case, which, if divulged, could cause national security issues, the court was told.
Crown prosecutor Sean Flood opposed bail, saying there was no evidence the man would be in danger in jail.
“Corrective Services are putting in place appropriate mechanisms to ensure (his) safety,” Flood said.
The possibility of the man fleeing the country also remained because there was a difference between an investigation where charges were merely possible to be arrested for this type of crime, the prosecutor argued.
“There’s clearly a strong motivation to flee once a person is charged with such a serious offence involving a maximum penalty of life imprisonment.”
Atkinson is due to deliver her bail decision on Tuesday.
