So it finally happened, former Australian soldier and special forces fighter Ben Roberts-Smith has been arrested. The high profile arrest of former Special Air Service Regiment [SASR] at the domestic terminal of Sydney Airport was very much a media affair. Ben Roberts-Smith has previously told prosecutors he would voluntarily present at a police station to be arrested, instead he was dragged off a flight in what was a public and staged arrest.

Firstly, I make no such assumptions of guilt or innocence, what Ben Roberts-Smith must be afforded is the presumption of innocence until proven otherwise. What I disagree with is the staged arrest of Ben Roberts-Smith as this further damages his reputation and possibly prejustices the trail. What we do know is the SASR was on increased operational tempo, the troopers were on back-to-back tours and under increased strain. I am not making excuses for any alleged unlawful conduct; however, these are criteria that must be factored into decisions. There has been much speculation that no commanding officers are facing charges, only troopers.

I have no idea if Ben Roberts-Smith is guilty or innocent, I certainly will not be speculating on this important issue. I can state facts though, Ben Roberts-Smith took Channel Nine to court for defamation, predominantly financed by Seven West Media owner Kerry Stokes. The civil matter based on the lower balance of probabilities criteria found that Ben Roberts-Smith was likely guilty of that criteria. I thought this was a terrible decision by his team, he exposed his case to scrutiny, this will likely be used in the criminal trial. This was basically a free look at what his defence would look like, a chance to take a look at defence witnesses.

I will be following the trial with much interest, this will be a highly visible trial and there will be many facets. What I noticed is the prosecutor has already explained the complexity of the case, there are no bodies, no blood splatter patterns, no shell casings, no cause of death and other forensic indicators. This occurred in another country, interviewing witnesses will be difficult, the time frame involved, these claims go back to the six tours from 2006 to 2012 with the war crimes alleged to have occurred between 2009 to 2012.

To meet the criminal standard of beyond a reasonable doubt will be difficult, I will be watching the trial closely. What I do know is these troopers were not only trained to kill, they were authorised to kill combatants by the Australian government. What is to be proved by war crimes prosecutors is if Ben Roberts-Smith went beyond the rules of engagement and unlawfully killed non- combatants or detained combatants that no longer posed a threat to Australian forces. Given the extended time frames involved and lack of evidence, I will be very interested to see if the allegations are proven to the criminal standard. One might ask, is the prosecution just going through a process they believe will likely fail to counter the claim they are taking this matter seriously?