“Some argue Ben Roberts-Smith’s situation is so exceptional that it calls for a special response. I agree; however, the special response is not trial by judge alone, but to recognise the community interest in having the trial outcome determined by a dozen members of our community,” writes HUGH SELBY.
Last year the High Court refused leave to Ben Roberts-Smith to appeal the decision that on the balance of probabilities he had killed, or caused juniors to kill, unarmed non-combatants.
Based on the courts’ findings I wrote two articles (here and here) in CityNews that set out why and how the medals of valour awarded to him should be revoked.
He still has those medals.
I find it disrespectful to all those who earned their medals that this man, whose alleged courage is soaked with the blood of innocents, can walk among us as a man of valour.
Now at last he faces criminal charges for those killings, following extensive investigations.
Fortunately, it will be a jury of ordinary citizens who will decide if those killings are to be regarded as the war crime of murder or not.
It will be a fair trial with a jury
I say fortunately because those who are determined to spin his conduct as being acceptable are now putting it about that he cannot get a fair trial, that any others who may be charged can also not get a fair trial, and that our Commonwealth law should be amended so that these people (other than the two already charged) can have a trial by judge alone. The claim is that such a trial would be “fairer” (here’s an example). These claims are false.
Judges and jurors are like the rest of us: given to holding strong views about this or that issue (be it a favoured sport or player, singer, band, political party, drink of choice, car, ute or truck, even brands of clothes).
Those beliefs are as much emotional as they are based on the opinions of others.
A clever but prejudiced judicial officer can always write their reasons in such a way as to mask their prejudices. Over decades I have seen it often enough to know that judges are no more impartial than jurors and juries, you or me.
I expect juries to include jurors with strong prejudices; however, unlike the biased judge who writes their reasons alone, the one or more such jurors must contend with the views and reasoning of their fellow jurors. There is some hope of a fair result in the numbers.
During covid, our courts moved to trial by judge alone because it was not safe to bring people together as juries. That was the right decision for the times. An exceptional situation called for a special response.
Some argue that Mr Roberts-Smith’s situation is so exceptional that it too calls for a special response. I agree; however, the special response is not to suggest trial by judge alone, but to recognise the community interest in having the trial outcome determined by a dozen members of our community who bring their wide experiences drawn from life to the task.
It needs to be remembered that the task of a jury is to assess the evidence, to decide what to accept, what not to accept. They do that, first, by listening to, and observing each witness. And then they do it again by listening to each other’s assessments.
The wisdom of a jury is not just the sum of its 12 parts. It is more than that, just as the success of a band or a sports team is more than the individual contributions of each player.
Readers will recall the lengths to which our chief justice went to achieve a fair trial when she presided over the trial of Bruce Lehrmann for the alleged rape of Brittany Higgins. The chief justice repeatedly reminded the jurors that they were not to make use of any information other than that presented to them from the witness box.
Her clear instructions were ignored by one juror who was so stupid as to leave the evidence of wrongdoing in the jury room. The trial was stopped.
We might learn from this example both that some people don’t and won’t listen, and that the problem of prejudice must be met and solved before the jurors are sworn in; that is, it must be tackled as jurors are chosen.
It is current practice for a trial judge to invite potential jurors who wish to be excused to come up to the trial judge and share their reasons, speaking softly.
For example, a juror may have been a victim of crime or a relative of a victim and so unable to deal with the evidence dispassionately.
In a trial where the events and the actors have had widespread and lengthy public attention – such as the future trial of Mr Roberts-Smith and any other former soldier caught up by allegations of the unlawful killing of a non-combatant – the trial judge may tell the prospective jurors that they should come forward for a private chat if they hold firm views about the guilt or innocence of the accused and they have no interest in having their views changed.
The trial judge could remind everyone that the trial will run for a long time, that the jurors have to get along with each other, and that a strongly held pre-conceived view will make every day rather stressful.
The problem of a juror bringing outside information to share with other jurors can be reduced, but not stopped, by having jurors put their personal items into lockers each day, and empanelling sufficient jurors – say up to 18 – so that if one or several jurors misbehave then they can be sent home without the trial being stopped.
The judge’s instruction to the jury is simple: “If one or more of you wants to ignore the rules then it’s vital that other jurors let the jury officer know immediately, and refuse to listen to, or look at any such outside material”.
‘I have shame, a lot of it. Shame it took so long to uncover the truth’
Misusing the notion of ‘the Rule of Law’
There’s a shape-shifting concept known as the “Rule of Law”. I think it’s supposed to remind us all of how lucky we are to have a legal and political system that mostly makes and follows reasonable rules, and that actively discourages corruption and the equivalent of underarm bowling.
You, too, might be bewildered when I tell you that Trump and Netanyahu are both, supposedly, following the “Rule of Law” as one threatens bombing back to the stone age (having launched a surprise attack), and the other is determined to continue a prolonged mass slaughter of non-combatants.
You might also wonder at the “Rule of Law” application to the US’s use of “rendition” and setting up the Guantanamo Detention camp (in Cuba) so that allegedly dangerous people could be tortured and detained indefinitely overseas.
Closer to home some “Rule of Law” devotees will tell us with a straight face that our concentration camps on Nauru, Christmas Island, and formerly in Papua New Guinea are not out of sight, out of mind, but are happy holiday camps for people who mistakenly tried to come to our country and now want to go back home where they will be happier, healthy and safe.
The vice-president of the Rule of Law Institute of Australia wrote the article referred to above. His solution to the constitutional requirement that Commonwealth indictable matters be tried by a jury (which he says is unfair to diggers) is a simple bit of legislation.
He wrote: “There is nothing sacrosanct about requiring the war crimes offences to be commenced with an indictment.
“If parliament wanted to, it could require these proceedings to be commenced summarily in the local courts.”
His notion is that thereafter the charges could be determined by a judge sitting alone.
With that statement he has exposed his institute as a farce.
“Indictable matters” are serious crimes, such as murder, terrorism, kidnapping. They are not minor, summary matters.
If the Commonwealth wants to change the constitution to allow for majority verdicts, or trial by judge alone, then there’s a well-established procedure to do so. It’s a referendum and we all have to vote.
That’s what the law requires. Those are the rules.
Bits of trickery, sleight of hand and spin don’t cut the mustard, not now, and hopefully, not ever.
Hugh Selby is a former barrister and the CityNews legal affairs columnist.
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