Andrew L. Urban
Risk a prejudice-tainted guilty verdict or apply for a permanent stay of proceedings due to prejudicial publicity. These are his only (lose-lose) options. It is a devil’s dilemma.
As they famously say in Ireland when you seek driving directions, “if you want to go there I wouldn’t start from here”. Ben Roberts-Smith has no choice but to start from “here”, which is a point in the legal system that offers no off-ramp or alternative route. Only a permanent stay of proceedings due to prejudicial publicity could avoid the trial. The problem with that route, if successful, is that he cannot reclaim his innocent name as the charges remain like a cloud over him. The problem with succumbing to a trial is the inevitable prejudice that has been generated through years of publicity, including reports of the defamation action against Nine which he lost, where the media’s claims of his war crimes was upheld on the balance of probabilities, the civil standard.
This is a universally acknowledged situation; no reasonable argument exists to deny the risk of at least some jurors having a prejudicial view of the charges. Even rigorous jury vetting is not foolproof and extensive judicial directions rely on jury compliance, which encounters the same problem. And even where jury misconduct (eg internet search, contacting outsiders, bribery or threats) becomes known, the resultant mistrial would only trigger a second trial. The problem is delayed, not solved.
Statutes in every Australian jurisdiction make disclosure of jury deliberations an offence. There is no mechanism to review jury deliberations. If a judge reviewed deliberations before a verdict (my preference*), the judge would effectively be supervising the jury’s reasoning process. That would undermine the jury’s constitutional role as the independent fact-finder. Even in cases with massive publicity—like those involving Ben Roberts-Smith—courts rely on traditional safeguards instead of interfering with deliberations. The law naively assumes jurors can set aside publicity and follow directions, though critics (like me with over a decade of examining wrongful convictions) question this assumption. The only dismantling a jury verdict would be via appeal on the grounds of unreasonable verdict … which led the Pell conviction being quashed in the High Court.
*The law to allow recording could only be changed through legislation, which would be highly controversial and I doubt if any politician would have the courage to champion such legislation.