Top lawyer joins Ben Roberts-Smith’s defence for ‘trial of the decade’
Ben Roberts-Smith leaves the Federal Court in Sydney. Picture: Christian Gilles/NewsWire
Make us preferred on GoogleBen Roberts-Smith has begun assembling the legal team that will defend him against war crimes charges in what is shaping up – for the nation’s top lawyers as well as the former soldier – as the biggest murder trial of the decade.
Much will depend on whether Mr Roberts-Smith’s backers in his defamation case against Nine newspapers, particularly media magnate Kerry Stokes, will stump up the funds for a similarly high-powered team in his criminal trial.
The commonwealth will provide basic legal assistance for the Victoria Cross recipient through the Afghanistan Inquiry Legal Assistance Scheme, which funds the reasonable costs of legal representation for current and former serving Australian Defence Force members who are the subject of criminal investigations and prosecutions.
However, “the reasonable professional costs of a legal practitioner” is unlikely to meet the going rate of even one of the junior barristers who sat alongside the silks representing him in his defamation case.
The maximum daily rate for senior counsel allowable under the scheme is $3650, and for junior counsel $2300.
Perhaps encouragingly for Mr Roberts-Smith, mining billionaire Gina Rinehart – a long-time supporter – on Wednesday slammed prosecutors for spending an estimated $300m “to try for years to bring SAS veterans, who have served our country, towards criminal proceedings, and most recently the arrest of Ben”.
However, neither Mr Stokes nor Mrs Rinehart has indicated whether they will provide additional funds for Mr Roberts-Smith’s defence in a trial that will run for months.
Among those already recruited for “Team BRS” is high-profile lawyer Karen Espiner, who is also acting for the only other Australian to have been charged with a war crime, Oliver Schulz.
Karen Espiner.
Like Mr Roberts-Smith, Mr Schulz, 44, is facing a possible life sentence after allegedly gunning down Afghan man Dad Mohammad in a wheat field in Oruzgan Province, southern Afghanistan in May 2012. Mr Schulz has pleaded not guilty and will face trial in the NSW Supreme Court after committal hearings last year in which witnesses watched helmet-cam footage aired on ABC television’s Four Corners program showing the alleged killing.
Over the past decade Ms Espiner, 39, has been consistently recognised in the Doyle’s Guide as one of the best criminal lawyers in Australia.
Married to former attorney-general Christian Porter, Ms Espiner co-founded Younes + Espiner Lawyers but in 2023 moved to Western Australia to lead the opening of the Hugo Law Group’s Perth office.
In the Schulz matter, Ms Espiner applied for bail a week after Mr Schulz was arrested for allegedly murdering an unarmed Afghan.
SAS Regiment trooper Oliver Schulz arrives at Downing Centre Court with lawyer Karen Espiner in 2025. Picture: Nikki Short/NewsWire
It appears similar considerations were at play when Mr Roberts-Smith’s matter was briefly mentioned in an online bail court on Wednesday morning and his legal representatives elected not to apply for bail. He will get another chance on April 17.
Other members of Mr Roberts-Smith’s team have yet to be signed on, with a trial date possibly up to two years away.
For comparison, the far-less complex trial for Mr Schulz – who was first charged in March 2023 – is not expected to begin until 2027.
Among the top silks considered most likely to be on the team are at least one of those who represented Mr Roberts-Smith in his defamation case against Nine and can bring their intricate knowledge of the sprawling case.
Arthur Moses SC, who has starred in dozens of high-profile legal battles and is a specialist in military law, is renowned for his aggressive approach to cross examination. When Mr Moses asked one SAS witness in the defamation case about another soldier who had given evidence earlier, the witness reported: “He said you went at him like a rabid dog.”
Known primarily for media law rather than criminal cases, Bruce McClintock SC would nevertheless also bring a mammoth knowledge of the case. He took on the defamation case as one of his last before retirement but may be tempted back for a case befitting a hugely successful career at the Bar.
Top silk Bret Walker SC headed Mr Roberts-Smith’s appeal team, challenging Justice Anthony Besanko’s finding that he was complicit in murders during his service in Afghanistan.
Mr Walker, who led the appeal that overturned the conviction of Cardinal George Pell for child sexual assault, rarely does trials, preferring appeals – but at a reported $30,000 a day may be too expensive even for a Stokes-level backer.
Media and commercial litigation lawyer Monica Allen would be another choice. While not a criminal lawyer, Ms Allen, a partner at BlackBay Lawyers, has an unrivalled understanding of the case, having travelled across the world collecting testimony for the defamation case from the former soldier’s comrades.