The mystery of WHO is bankrolling Ben Roberts-Smith’s legal defence is solved… and the answer is truly surprising

Billionaire mining magnate Gina Rinehart is not funding Ben Roberts-Smith’s multimillion-dollar legal defence, a source close to the accused war criminal has confirmed.

Australia’s richest person has long been a fierce supporter of Roberts-Smith, but it will be taxpayers who will foot the enormous bill to both defend and prosecute the Victoria Cross recipient.

‘Rumours that Mr Roberts-Smith’s criminal defence is being funded by Gina Rinehart are untrue,’ a source close to the former SAS corporal said.

The Daily Mail can reveal Roberts-Smith will have his legal costs met by the commonwealth-funded Afghanistan Inquiry Legal Assistance Scheme (AILAS).  

Roberts-Smith is charged with five counts of ‘war crime – murder’ allegedly committed between 2009 and 2012 while serving with the Special Air Service Regiment in Afghanistan.

The criminal case is expected to drag on for years and it is estimated the final bill for both sides will likely be ‘many millions’ of dollars.

Perth billionaire Kerry Stokes funded Roberts-Smith’s unsuccessful Federal Court defamation action against Nine newspapers, which first accused him of being a war criminal in a series of 2018 reports.

Roberts-Smith appealed against Justice Anthony Besanko’s June 2023 findings that those allegations were substantially true, on the balance of probabilities, but he again lost.

‘Nine has been attempting to suggest since the appeal that Gina Rinehart is funding Mr Roberts-Smith’s defence,’ the source close to Roberts-Smith said. 

‘Subpoenas were issued to both Ms Rinehart and Mr Roberts-Smith’s legal team seeking evidence of any such arrangement. 

‘None was forthcoming, and Nine ultimately withdrew its subpoena to Ms Rinehart.’ 

The federal government has reportedly allocated $318million over the past decade to investigate war crimes allegedly committed by Australian soldiers in Afghanistan. 

Former NSW Supreme Court judge Paul Brereton conducted a four-year inquiry for the Inspector-General of the Australian Defence Force and in November 2020 published a damning report.

Justice Brereton found ‘credible information’ 25 Australian special forces personnel had been responsible for 39 unlawful killings in Afghanistan, along with cover-ups and other misconduct.

Since then the Australian Federal Police (AFP) and the Office of the Special Investigator (OSI) have commenced 53 investigations, and 10 of those are ongoing.

One investigation resulted in former SAS member Oliver Schulz being charged with murdering an Afghan man at Deh Jawz in Uruzgan Province in May 2012.

Schulz, who was arrested in March 2023 and will not face trial until at least February next year, is also having his costs met by the AILAS.

The source close to Roberts-Smith said that like Schulz, the 47-year-old father-of-two was entitled to have his legal costs met by the commonwealth.

‘Australians, whether they like it or not, have already funded well in excess of $300million in investigative costs, excluding the Brereton Inquiry,’ the source said.

‘[Taxpayers] will now fund both sides of this case – the prosecution and the defence – as the proceedings move forward.’

Solicitor Karen Espiner, who is representing Schulz, is now part of Roberts-Smith’s legal team, as are barristers James Godbolt and Slade Howell.

Roberts-Smith was arrested on April 7 and has been held since then at the Metropolitan Remand and Reception Centre at Silverwater in Sydney’s west.

He was taken into custody after a five-year investigation by the AFP and the OSI, which later held a joint press conference at the AFP’s Sydney headquarters.

The Daily Mail previously revealed Roberts-Smith had repeatedly offered to present himself to police if they were going to charge him with war crimes.

Instead, Australia’s most decorated living soldier was apprehended in front of his twin 15-year-old daughters and partner Sarah Matulin as he arrived on a Qantas flight from Brisbane at Sydney Airport.

Mrs Rinehart, the executive chairwoman of Hancock Prospecting, quickly issued a statement criticising Roberts-Smith’s arrest and the questioning the cost of investigating him and other veterans.

‘I don’t understand how it can be justified to spend more than $300million to try for years to bring SAS veterans, who have served our country, towards criminal proceedings, and most recently the arrest of Ben,’ she said.

‘Surely, the more than $300million of taxpayers’ money would have been far better spent strengthening Australia’s security and keeping Australians safe from terrorism, including removing terrorists and their supporters from our country.’

Roberts-Smith is accused under the Commonwealth Criminal Code of shooting dead an unarmed Afghan, murdering another with an SAS comrade, and ordering the execution of three more.

Each of the charges against Roberts-Smith carries a maximum penalty of life in prison. He has always denied taking part in any unlawful killings.

Two of the five Afghan men the former corporal is accused of murdering have never been identified by war crimes investigators.

Court documents show one of his alleged victims is described only as ‘Person Under Control 1’, or alternatively ‘Enemy Killed in Action 3’.

Roberts-Smith is accused of murdering that Afghan male with another SAS member dubbed ‘Person 68’ at Syahchow in Uruzgan Province on October 20, 2012.

Another alleged victim who is only known to authorities as ‘Person Under Control 2’ or ‘Enemy Killed in Action 4’ was killed on the same day in the same place.

Roberts-Smith is accused in a court attendance notice of aiding, abetting, counselling or procuring an SAS rookie dubbed ‘Person 66’ to shoot dead ‘Person Under Control 2’.

Three of Roberts-Smith’s alleged victims are named in court documents, while two other former SAS members have been identified with pseudonyms as having killed detainees but are not charged with any offence.

Roberts-Smith is accused of aiding, abetting, counselling or procuring Person 4 to shoot dead Mohammed Essa on April 12, 2009 at Kakarak in Uruzgan Province.

He is also accused of intentionally causing the death of ‘a person identified as Ahmadullah’ at Kakarak on the same day.

Mohammed Essa was the father of Ahmadullah, whose prosthetic leg was taken as a trophy after he was killed, and later used as a drinking vessel at the SAS’s Tarin Kowt base.

Roberts-Smith is further charged with aiding, abetting, counselling or procuring Person 11 to kill Ali Jan at Darwan in Uruzgan Province on September 11, 2012.

Ali Jan was the shepherd Nine newspapers claimed Roberts-Smith kicked off a cliff before ordering his execution.

Each of the alleged victims is described in the charge sheets as ‘not taking an active part in hostilities’ when they were killed.

OSI director of investigations Ross Barnett said during the press conference on the day of Roberts-Smith’s arrest that prosecuting war crimes allegedly committed in Afghanistan was ‘incredibly complex’.

Mr Barnett said the OSI had been investigating ‘literally dozens of murders alleged to have been committed in the middle of a warzone, in a country 9,000km from Australia that we can no longer access’.

‘So, the challenge for investigators is – because we can’t go to that country – we don’t have access to the crime scene… ‘ he said.

‘So we don’t have photographs, site plans, measurements, the recovery of projectiles, blood-spatter analysis, all of those things we’d normally get at a crime scene.

‘We don’t have access to the deceased – there’s no post-mortem, therefore there’s no official cause of death, there’s no recovery of projectiles to link to weapons that might have been carried by members of the ADF.’

Roberts-Smith, who as well as holding a Victoria Cross earned a Medal for Gallantry in Afghanistan, will apply for bail on Friday at Downing Centre Local Court.