Andrew L. Urban
That’s not my headline: it is the headline on an editorial in The Australian (April 9, 2026) and mirrors my own of the day before, referring to the five murder war crimes charges against Ben Roberts-Smith. The difference is that the Australian’s editorial expresses confidence in that legal system. I question that confidence.
I agree with the headline. But in the very first paragraph, the editorial says: “We can have confidence that our justice system is well equipped to deal with the individual circumstances of what is put before it.” This is a bit naive, in my view. Especially in the challenging case against Roberts-Smith.
In the final paragraph that sentiment of “we can have confidence” is slightly altered to “we must have confidence…” I suggest we must not. Here’s that par in full:
We also agree with Sky News commentator Andrew Bolt, who said this was an opportunity to demonstrate to the world that we are a nation that takes its responsibilities seriously. We fully understand the demands that are placed on our soldiers in theatres of war and think it is proper to ask whether too much was asked of the Special Air Service in Afghanistan. But we do not condone the killing of unarmed prisoners of war under any circumstances and insist that claims that this had happened be properly investigated and dealt with. The criminal charges against Mr Roberts-Smith are a tragedy on many levels, but to ignore the claims would diminish us as a nation and empower our enemies who seek to humiliate us in international forums, including the International Criminal Court. Former prime minister John Howard is right to say the rule of law is a core Australian value, fought for over generations, and fundamental to the operation of the rule of law is that no man or woman is above or beyond its reach. We must have confidence in our laws and legal institutions and trust that justice will be served, including to the accused, who has not been found guilty of any crime.
And here’s my rationale for why confidence in our legal system is misplaced. (Given this blog is called wrongfulconvictionsreport and is dedicated to exploring and exposing miscarriages of justice, readers will not be surprised by my views.)
In short, I maintain that the track record of our legal system is not shiny; it is rather shitty. Like a grand avenue fouled with litter and faeces. The system has a poor record in reaching safe convictions and in subsequently correcting those miscarriages of justice. Even from our small corner of the Australian legal universe, we can see that despite lessons that should have been learnt decades ago (eg Lindy Chamberlain case), the system stumbles ahead with scant regard for reforms crying out for action (eg forensic labs to be independent of police).
I have concerns that prosecutors remain focused on getting convictions rather than finding the truth. The fact that this is a systemic flaw in our adversarial system is of little consolation. I am not alone in this concern. One example: over a decade ago we reported on the Symposium on Miscarriages of Justice, (Flinders University, Adelaide, South Australia, Nov. 7 & 8, 2014).
“If the Australian public was aware that dozens of innocent people are serving lengthy sentences for murders and rapes they didn’t commit – and the real criminals are living free among us – we could expect considerable outrage and demands that ‘something be done’,” suggests Dr Robert Moles, co-author of Forensic Investigations and Miscarriages of Justice (Irwin Law, 2010), the definitive book on Miscarriages of Justice. That ‘something’ is a range of reforms from simple to complex (see below) that the symposium (which he instigated) explored in detail.
REFORMS & CHANGES NEEDED
A sample of the potential reforms as highlighted at the symposium:
Police investigations:
training to avoid ‘tunnel vision’ approach
training to adhere strictly to investigation procedures, notably accurate record keeping, witness statements, evidence collection management culture to emphasise serving the court not the prosecution
Forensic scientists, laboratories, professional bodies:
develop a system of quality standards, with documented policies and procedures
training to explain evidence in court so that it is understood
requirements for validation of evidence
training to avoid contextual bias
emphasis on serving the court not the police or prosecutio
Prosecution:
adherence to rules of law (e.g. not presenting speculation as fact)
explain forensic evidence rationally
presentation of evidence fairly
seeking conviction must be subservient to seeking of truth
accountability: penalties to apply for misconduct
Judges:
demand clarity and understanding by jury of scientific & forensic evidence
ensure prosecutors adhere to rules of trial behaviour and fairness
accountability: penalties to apply for misconduct
The forensic science labs independence issue has been bubbling away for years. Forensic science faces an institutional crisis: laboratories claim scientific independence while operating under the administrative and financial control of law enforcement hierarchies. This tension between truth and power is ancient, appearing whenever those who generate knowledge must answer to those who wield authority.
But there are several other contributing factors (mostly unknown by the general public) that dog the justice system. Dr Rachel Dioso-Villa at Griffith University led a study team to identify them. This is the chart they published in the Flinders Law Journal:
Griffith University research
In the case of Ben Roberts-Smith, the complexities and challenges are magnified and multiplied, as we outlined in our report yesterday. This is a perfect example of a trial in which the jury deliberations should be recorded for review by the judge.