A lawyer representing Ben Roberts-Smith called for the person or people responsible for leaking advance notice of the Victoria Cross recipient’s arrest last month to be identified and held responsible.
The National Anti-Corruption Commission confirmed it had received a complaint from the Office of the Special Investigator and Federal Police about the advance notice provided to journalists before the arrest of Ben Roberts-Smith on April 7.
The commission said the matter was under “active consideration” and commissioner and former war crimes investigator Paul Brereton would not be involved, avoiding another conflict-of-interest headache for the agency.
Criminal lawyer Karen Espiner welcomed the unusual referral by the two law-enforcement agencies, which have arrested two veterans of the Afghanistan war after investigations that have taken five years. Hundreds of millions were re-allocated from the Defence budget to the Office of the Special Investigator.
“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,” Ms Espiner said.
Nine reporters
Online data suggests that newspapers owned by the Nine media group may have prepared an article about the arrest of the famous ex-soldier the day before. Journalists and photographers from the company may have also been waiting for the arrest when Mr Roberts-Smith was detained at Sydney Airport after arriving with his partner and twin daughters on a shopping trip.
OSI Director-General Chris Moraitis said he called Attorney-General Michelle Rowland that morning to inform her of the impending arrest, which triggered blanket media coverage. When she didn’t answer, one of his staff called the minister’s office but did not disclose where the arrest would be taking place, he told a Senate committee Tuesday evening.
“We believe there is an unauthorised disclosure,” he said. “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.
“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.”
Major General Brereton, who plans to step down in July, oversaw the four-year investigation into allegations that prisoners were executed in Afghanistan by members of the special forces, including Mr Roberts-Smith, who was an SAS corporal.
Mr Roberts-Smith is a former executive at the Seven television network, which is part of the same company as The Nightly.
Ten war crimes investigations are still being pursued by the Office of the Special Investigator, Mr Moraitis said, although he would not say how many veterans are involved or how many interviews the agency has conducted since it was created five-and-a-half years ago.
The only other ex-soldier charged is Oliver Schulz, another SAS veteran.
Mr Moraitis told the senators he hoped the investigations would be finished soon because of the effect on those affected. “Soon can be anywhere between six months to a year and a half,” he said.
No arrest by appointment
Mr Roberts-Smith’s public arrest attracted criticism given his lawyers said he had offered to hand himself into authorities anywhere and at any time.
There has been speculation prosecutors preferred to try him on five counts of the war crime of murder in NSW rather than Queensland, where he lives.
The head of investigations at the Office of the Special Investigator, Ross Barnett, declined to explain why the arrest took place in NSW, citing a need not to prejudice the court case.
“In this particular case the operational planning process did not support the option of an arrest by appointment,” he said.
Prosecutors have said they suspected Mr Roberts-Smith was planning to emigrate from Australia when they arrested him in April on camera, an approach that triggered a public backlash.
“It was really about location — which was the most propitious location given all the circumstances to effect an arrest,” Mr Moraitis said. “If that’s strategic, it’s more tactical, I think, if I could use that distinction.”
Mr Roberts-Smith has been accused of executing and ordering the execution of five prisoners between 2009 and 2012. He has said he will plead not guilty.
Prosecutors have foreshadowed more charges in a case that has divided public opinion and been described as “the murder trial of the decade”.
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