Victoria Cross recipient Ben Roberts-Smith says he will use his trial to clear his name. He just hasn't been given the full case to answer yet.

The Downing Centre Local Court was told on Tuesday that the brief of evidence against Australia's most decorated living soldier is being held up by national security concerns, with the federal government applying for orders to protect classified material before any of it can be handed over to his legal team. The matter has been pushed to a separate hearing in September.

Roberts-Smith, 47, appeared via remote arrangements before Judge Susan Horan for a committal mention. He wasn't required to appear in person.

His solicitor Karen Espiner told the court her client, the prosecution and the government would likely agree on how the classified documents should be handled. Crown prosecutor Chelsea Brain said the brief couldn't be released to the defence until the protective orders were in place. Judge Horan will need to be satisfied the orders are necessary at the September hearing.

Under the National Security Information Act, a judge can make orders covering the disclosure, storage, handling and destruction of classified material in a criminal matter. The provisions are designed to manage sensitive operational material in cases that touch on defence and intelligence work.

Roberts-Smith has not entered pleas to any of the charges. He has said publicly that he intends to use the trial to clear his name.

He was released on bail in April after his father, Len Roberts-Smith, a former Western Australia Supreme Court judge, paid a $250,000 surety. Roberts-Smith is the recipient of the Victoria Cross for valour in Afghanistan and the Medal for Gallantry. He served as a Special Air Service Regiment corporal.

The charges, prosecuted by the Commonwealth Director of Public Prosecutions, relate to three separate incidents between 2009 and 2012, according to court documents reported by AAP. Roberts-Smith denies the allegations and is defending all charges. The maximum penalty for each count is life imprisonment, although that maximum has rarely been imposed in war crimes prosecutions of this kind, which remain new territory in Australian criminal law. He is the second Australian veteran of the Afghanistan campaign to be charged with war crimes.

Why the criminal case is not the defamation case

Anyone who followed this from the start will remember Ben Roberts-Smith lost a defamation action against The Age and The Sydney Morning Herald in 2023, and lost his appeal in the Federal Court in 2025. That result is often reported as though it closed the question. It did not, and the difference matters a great deal to what happens next.

Defamation is a civil action, decided on the balance of probabilities. A judge only has to be satisfied something is more likely than not. A criminal prosecution has to satisfy the court beyond reasonable doubt, the highest standard in Australian law, and the burden sits entirely with the Crown rather than with the accused. Roberts-Smith has never been tested against that standard, which is precisely why he has said he wants the trial.

The delay is doing its own damage

The practical effect of the national security arguments is that a man charged with the most serious offences on the Australian statute book cannot yet read the case against him. His lawyers cannot begin properly preparing a defence to material they have not seen, and every month of protective orders pushes a trial further away.

Karl Stefanovic has meanwhile teased an interview with Roberts-Smith, calling it the interview of the decade. Whether that goes ahead before a criminal trial, and what the non publication orders would permit him to say, is a separate question for his lawyers.

Several non publication orders remain in force. The matter is next listed for the National Security Information Act hearing in September.