The leaking to the media of plans to arrest Ben Roberts Smith has been referred to the National Anti-Corruption Commission and called a “serious breach” of integrity by the war hero’s lawyers.
Roberts-Smith, 47, a Victoria Cross recipient and Australia’s most decorated living soldier, was arrested on April 7 after arriving at Sydney Airport from Brisbane with his family, and charged with five counts of war crimes – murder.
The arrest of the former SAS corporal was filmed by the Australian Federal Police (AFP), but journalists and photographers from 9News, which has led a years-long campaign against Roberts-Smith, were present during the arrest and filmed from inside the terminal.
Metadata from articles on the arrest from The Sydney Morning Herald and The Age, both Nine mastheads, also appear to show they were prepared a day in advance, suggesting journalists were tipped off by sources within the AFP or the Office of the Special Investigator (OSI).
The Director-General of the OSI, Chris Moraitis, told a Senate Estimates hearing on Tuesday night he was alarmed when he noticed media was present during the arrest.
Mr Moraitis said he had called Attorney-General Michelle Rowland’s office to inform her Roberts-Smith arrest was imminent, but when she didn’t answer his staff informed the minister’s office but did not reveal the location.
“We believe there is an unauthorised disclosure. That’s a matter that concerns me. The media seems to have been privy to things and we’re taking steps to ascertain what happened there,” he said.
“We were aware of the media being present because we saw media on the morning around various places. It surprised me that happened because we have usually been pretty good on keeping a low profile.”
He said the AFP and the OSI had written to the NACC, which confirmed it had received a complaint, which was now under “active investigation” with no involvement from retiring Commissioner Paul Brereton, a former war crimes investigator, due to conflict of interest, The Nightly reported.
Roberts-Smith’s lawyer Karen Espiner said: “The leak that allowed Nine journalists to be tipped off before Ben’s arrest represents a serious breach of protocol and integrity, and the commission must now fully investigate its origins and hold those responsible to account.”
The timing of the arrest has also come under scrutiny due to claims by Nine journalist Nick McKenzie that the arrest may have taken place in Sydney so the case would be heard by a “more diverse jury”.
Roberts-Smith’s lawyers had said their client previously offered to hand himself in if the OSI decided to charge him, but prosecutors alleged in court while opposing bail they believed Roberts-Smith was planning to relocate overseas.
OSI head of investigations Ross Barnett cited the need to avoid prejudicing the court case in declining to explain why Roberts-Smith was arrested in NSW, but said: “In this particular case the operational planning process did not support the option of an arrest by appointment.”
Mr Moraitis said: ““It was really about location – which was the most propitious location given all the circumstances to effect an arrest.
“If that’s strategic, it’s more tactical, I think, if I could use that distinction.”
Mr. Roberts-Smith continues to deny all allegations against him, which relate to alleged incidents in Afghanistan between 2009 and 2012, and has said he will plead not guilty.
He will face court again on June 2.
Header image: 9News footage taken from inside the terminal during the arrest (9News).
