Andrew L. Urban
Of my five books dealing with cases I regard as wrongful convictions, the most recent two examine cases of alleged historical sexual and physical abuse dating back over four decades. The only ‘evidence’ against the men was say-so based on memories of the complainants. They were found guilty. Now Ben Roberts-Smith is to face trial over alleged war crimes in Afghanistan about two decades ago also based on say so memories. Lawyers doubt his trial could be fair.
More books will be written about the failures of the legal system as a result of the Ben Roberts-Smith prosecution. No matter what the result. The furore began when federal police arrested him arriving with his daughters in an unwarranted public display at Sydney airport on Tuesday, April 7, 2026. It is not unreasonable to expect the subject of witness memory reliability at trial to be a feature in all of them. It certainly was in mine.*
The most recent commentary on the dangers inherent in a Roberts-Smith trial comes from Chris Merritt, vice-president of the Rule of Law Institute of Australia, writing in The Australian today (April 10, 2026).
This country needs to come to terms with the fact that there is a real risk that Ben Roberts-Smith will not be given a fair trial. This would be the worst possible outcome – far worse than having a decorated former soldier convicted on five charges of war crime murder.
If we cannot provide a fair trial for Roberts-Smith it would shake confidence in the justice system and send a terrible signal to those in the military as well as potential recruits.
That outcome is not inevitable. But the judge who presides over his trial will face an immense task in ensuring it does not lead to injustice.
There is no clear rule on how far judges will allow witnesses to go in attempting to recall what happened in the distant past, but it’s worth considering the view of the late Sir Laurence Street, another former Chief Justice of NSW.
Street conducted a royal commission in 1983 and expressed grave doubts about the reliability of testimony about events that were just five or six years in the past.
“In some cases, suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection,” Street wrote.
There is, of course, no suggestion that the witnesses who will give evidence against Shultz and Roberts-Smith are afflicted by such problems.
Nor is there any suggestion that judges are incapable of warning juries to treat testimony with caution – or even extreme caution.
Even so, these cases will take the courts into uncomfortable territory: how can they do justice over events in the distant past where the critical factor is human memory – which is not infallible?
It was clear in my own research that memory degrades and becomes reconstructive rather than photographic. Unreliable even after a few years, never mind decades. Prominent barrister and former president of the Law Council of Australia, Arthur Moses SC, has repeatedly highlighted the difficulty of relying on recollection in cases involving events from many years earlier. A criminal prosecution relying on soldiers recalling events from Afghanistan more than a decade ago will require careful scrutiny of witness reliability. Cross-examination will focus heavily on inconsistencies between recollections. And his views are universally held.
A former NSW Senior Crown Prosecutor has commented in media discussions about war-crimes prosecutions and delayed trials, noting that honest witnesses can still be mistaken.
By the way, I would gently edit Chris Merritt’s statement that “If we cannot provide a fair trial for Roberts-Smith it would shake confidence in the justice system…” I would add the word “further” before the word “shake”…
Adding to these challenges, the trial jury will not comprise Roberts-Smiths’ military-relevant peers. Former barrister Louise Clegg writes (The Spectator Australia, April 2026): In the United States, such allegations would be prosecuted by court martial.
This matters. The criminal law assumes access to crime scenes, forensic evidence, and witnesses who can be tested contemporaneously. Yet even the Office of the Special Investigator has acknowledged the realities: no access to Afghanistan, no post-mortems, no ballistic evidence, often little more than photographs and recollections.
None of this is to suggest serious allegations should not be investigated, or grave wrongdoing excused. But the system now deployed was not designed for these circumstances. It reflects a fusion of two impulses: the late-20th-century drive to universalise international (including war) criminal law, and the older constitutional commitment to trial by jury in ordinary courts.
I make no defence of Ben Roberts-Smith. But there are real questions about delay and cost, the institutional fit of a modern jury trial for wartime conduct, and whether parliament in 2002 fully appreciated the divisions it might create in a more polarised world when it copy and pasted the most expansive vision of international criminal justice into domestic law.
The politicisation and weaponisation by political actors and media of our most decorated living soldier through this very public process will be devastating to the morale of our defence forces – and to recruitment and retention – at the worst possible time. We are embarked on yet another legal circus that will be used to rip the country apart. Long story short, this process should be playing out in a system of military justice, not the ordinary criminal courts.
Well, that has not been an option since Roberts-Smith left the military. The judge and jury in this trial will carry a massive burden of responsibility to safeguard the trial that will, from the start, look like a case meant for text book study be law students. Every conceivable element of a fair trial is captive to the combination of circumstances – and time.
What a helluva way to head into ANZAC Day….
*Presumption of Evil – Noel Greenaway – sexual abuser or collateral damage?
Presumption of Evil 2 – Frank Valentine Guilty by Say-So