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.
Ben Roberts-Smith’s Devil’s Dilemma: A No-Win Trap That Demands Jury-System Overhaul
Andrew L. Urban is right: Ben Roberts-Smith is staring down a genuine devil’s dilemma. Risk a criminal trial before a jury that has been marinated for years in wall-to-wall prejudicial publicity, or apply for a permanent stay and live forever under the cloud of unproven “war crimes” allegations that a civil court already accepted on the balance of probabilities.
Neither path delivers justice.
A trial cannot magically erase the defamation judgment, the relentless media coverage, or the court of public opinion that long ago pronounced him guilty. Even the most rigorous vetting and the sternest judicial directions are blunt instruments; jurors are human, and humans remember headlines. A permanent stay might halt proceedings but leaves the charges hanging like a Sword of Damocles, technically unproven, practically career-ending, reputation-destroying. Roberts-Smith cannot “win” either way. The system has handed him a coin with two tails.
This is not an isolated failure. It is the predictable result of a jury model designed for 19th-century villages, not 21st-century global media firestorms. The article correctly flags the absence of any reliable safeguard against prejudice once the publicity genie is out of the bottle. But the real scandal is that we keep pretending the old tools still work. It is time; past time, for bold, even politically uncomfortable legislative fixes that actually improve jury quality instead of merely hoping jurors will rise above the noise.
Here are four genuinely out-of-the-box reforms that would require parliamentary votes but could restore fairness without dismantling the jury’s constitutional role:
1. Mandatory “Prejudice-Proof” Juror Academy Create a national (or state-based) one-day intensive training program that every potential juror in high-publicity cases must complete before being empanelled. Not optional lectures, compulsory modules designed by behavioural scientists on cognitive bias, media literacy, the difference between civil and criminal standards, and the neuroscience of why “I saw it on the news” feels like evidence. Completion would be verified via secure digital ID. Legislation could make service in such cases conditional on Academy certification. It costs money, yes but far less than repeated mistrials or ruined lives.
2. AI-Assisted Blind Jury Selection with Real-Time Bias Auditing. Allow courts to use anonymised, algorithm-driven questionnaires (run through privacy-compliant AI) that flag media-consumption patterns, social-media footprints and prior exposure to the case without revealing identities. In extreme cases, the system could automatically draw from a national pool rather than the local one, or even require a percentage of “media-naïve” jurors (e.g., those who report minimal news consumption). A judicial oversight panel would review the AI outputs in camera. Controversial? Absolutely. But so is stacking the deck against an accused through unavoidable publicity.
3. Secure, Post-Verdict Deliberation Review (the Recording Option Urban Favours) Legislate for audio-only recording of jury deliberations in cases where prejudicial publicity has been formally acknowledged by the court. Recordings would be sealed, accessible only to an independent appellate panel after verdict and only on application by the accused or the Crown where fresh evidence of bias emerges. No live judicial supervision, jurors would still deliberate in private; but the record would exist for accountability. The statute could include heavy penalties for misuse and automatic destruction after appeals are exhausted. Politicians will scream “jury independence!” but the alternative is pretending prejudice never influences outcomes. Cardinal Pell’s High Court appeal succeeded on unreasonable verdict grounds; why not give future courts a direct window into the reasoning process instead of guessing?
4. Accused’s Statutory Right to Elect a “Publicity-Stayed Bench Trial” In cases where a judge finds (after public hearing) that publicity has created a “substantial risk of irremediable prejudice,” give the accused a one-time statutory right to waive jury trial and elect a judge-alone hearing. The verdict would carry the same legal weight as a jury verdict and could include an explicit “declaration of factual innocence” if the judge finds the case unproven. This is not abolishing juries; it is giving the accused an escape hatch when the system itself has poisoned the jury pool. Queensland, New South Wales and other jurisdictions already permit judge-alone trials in limited circumstances we need to expand the trigger to include proven media contamination.
The media contamination in Ben Roberts-Smith’s case is extreme and arguably unprecedented in Australia. For nearly eight years, Nine Newspapers (SMH, The Age, and 60 Minutes) ran a relentless, high-profile campaign detailing graphic allegations of murder and war crimes, complete with front-page exposés, television specials, and books. This was followed by a 110-day public defamation trial that ended with Justice Besanko finding, on the lower civil standard that Roberts-Smith had committed multiple unlawful killings. Those findings were splashed across every major outlet, cementing a public narrative of guilt long before any criminal charges were laid. The result is a jury pool that has been saturated with prejudicial material: detailed “evidence,” witness accounts, and judicial conclusions that most ordinary Australians have absorbed through news, social media, podcasts, and dinner-table conversations.
Even rigorous vetting cannot reliably filter this out. The presumption of innocence has been effectively shredded by years of one-sided, unchallenged publicity that no judicial direction can realistically erase. This is textbook media contamination and it has left Roberts-Smith facing the very real prospect of a trial by a jury that already believes the worst.
These ideas are deliberately provocative because the status quo is indefensible. We cannot keep sending high-profile defendants into the arena while shrugging that “jurors will follow directions.” The law’s naive faith in human perfectibility has become a trap for the innocent and a shield for the guilty.
Ben Roberts-Smith’s case is the canary in the coal mine. If we do nothing, the next high-profile defendant; soldier, celebrity, whistle-blower, will face the same rigged coin toss. Parliament has the power to change the rules. The only question is whether it has the courage to admit the current jury system sometimes delivers theatre, not truth.
The devil’s dilemma is not Roberts-Smith’s fault. It is ours, until we legislate our way out of it.
The big challenge for the common law system across the Anglosphere is identified by Steven when he refers to a 19th century jury system in the modern world. His suggested reforms are worth considering even while knowing that the legal systems would find – out of hand – any reforms as appealing as the plague. I am still an optimist, except when it comes to the legal system …
Should not be heard in NSW because he does not reside there ! Will jurors include Muslims ? Could have been a simple Summons to appear instead of all that publicity of arrest at airport. More people will think twice before joining Armed Forces. I have a great dislike of the Leftist UN and The International Court of Justice which seem to dictate how we are governed.
Domiciled in Perth WA at the time of the alleged offences, living in Queensland for several years recently, Ben Roberts- Smith was arrested in Sydney to be tried in NSW. A Nine newspaper report I saw after posting this, stated that this was because the jury pool in Sydney was more ‘diverse’ …what, like more Muslims? Concentrated in Western Sydney …?
Do you really think jurors are chosen becuase of the crime someone has done and against whom it is done? Don’t know why they chose NSW but being diverse is not the reason here…….everyone knows how much they care about any community???
What a dreadful dilemma, much like split second decisions in the battlefield. No one cannot feel for BRS in even the smallest amount. The impact across our defence forces must be immense.
I believe he’s been made a decoy for far worse government misdeeds.