Andrew L. Urban
It’s all very well to have a war crimes murder trial of Ben Roberts-Smith but given its track record, the legal system is not all that trustworthy to deliver justice. The many moving parts of the system include the investigators (AFP and OSI), the prosecutors, the judge and the jury. And this will be an extraordinarily challenging trial.
Certainly one of the most challenging and consequential criminal trials in Australian history is on the horizon, with Ben Roberts-Smith in the dock. It has inspired dozens of columns and comments in anticipation. Many have discussed the legal and military aspects in great detail.
Some, like columnist Peter O’Brien, who, with the benefit of experience and qualifications, penned a four-part series in Quadrant. He argues that the courts are the right place to unwrap what happened. The fourth is in response to the responses he received, titled Everyone’s a Critic. He picks through some comments noting inconsistencies and errors among the critics. He ends with the following:
I have never personally killed anyone. But soldiers under my command have. When I looked at those bodies, what I felt was satisfaction at a job well done. What I did not feel was hatred or even animosity. If they had been presented to me as prisoners, I would not have felt the slightest desire to shoot them, even though I could have been on the receiving end of one of their AK47 rounds. Even though their comrades had killed four men I knew and admired, one of whom I counted as a friend. I had attended the funeral of two of them and saw the unutterable grief of their young widows.
But to be honest, I probably would not be quite so exercised about all this, if it had not been for the accusations of ‘blooding’. When I was a tactics instructor at the Land Warfare Centre at Canungra, my boss was an SAS veteran, Major Greg Warland. And he taught me a lesson I have never forgotten – a combat officer’s first loyalty is to his soldiers. Ordering them to incriminate themselves, if it happened that way is, in my view, a most egregious betrayal of that duty. If it happened that way – and only a court can decide this – it does not negate the culpability of those who carried out an illegal order, but it does exponentially increase the culpability of whoever issued that order.
If it happened that way.
To which I commented:
Thank you Peter, this is a helpful addition to your series. There is one major issue for me: after 13 years researching and writing about wrongful convictions (books & blogs), my confidence in the legal system has been utterly destroyed. This means I have no confidence that criminal trials (whether by jury or judge alone) can be relied on to reflect the facts. The road to justice seems challenged by malpractice, incompetence and lies.
Reply
Peter OBrien
It’s hard to disagree with you Andrew, but one thing seems clear to me. If I were to face a criminal trial, based on recent judicial rulings, I would much prefer to take my chances with a jury.
But even with a jury, we cannot be assured of a fair and just result. Not after jury verdicts in murder trials like those, for example, of Robert Xie, Sue Neill-Fraser and Robert Farquharson. In the case of the latter, police insist that Farquharson drowned his beloved three little boys by driving into a dam, as an act of revenge for his then wife going off with another man. As we have previously noted, the question that arises from that assumption (no evidence was shown in support) makes the suggestion far fetched: it supposes that Farquharson risked his own life by driving into the dam on purpose, not knowing whether he could survive – which he barely did. Did any of the two juries – 24 people at the two trials – wonder about this, even if no-one else in court did?
In The Road to Damnation, author and scientist Chris Brook examines the case in great detail.
Dr Robert N Moles, Flinders University legal academic, says “The book Road to Damnation is an excellent analysis of a potential wrongful conviction case. There is no doubt the underlying circumstances arise from a terrible tragedy – the deaths of three young children. But is it possible that our instinctive response to such an awful calamity has caused us to mis-read the circumstances giving rise to it? Using the tools of scientific and psychological research, Chris Brook argues that to be the case. His calm, careful and skilful deconstruction of each of the damning elements of the case has caused me to reconsider my confidence in the conclusion arrived at by the jury.“
Much the same question could be applied to the Roberts-Smith jury – assuming one can be found free of prejudicial bias.
By some sort of cosmic coincidence, as I was writing this, I came across an article by US Federal Judge Roy K. Altman in The Free Press, titled “A Miscarriage of Journalism at The New York Times”. This is the relevant section:
Nicholas Kristof’s recent essay about supposed Israeli sex crimes against Palestinian detainees is a travesty—not simply because it’s wrong as a matter of fact, or because it regurgitates long-debunked blood libels against the Jewish state at a time of rising antisemitism around the world.
It’s a travesty because it embraces the erosion of democratic norms at an inflection point in our history. Since our founding, the American political experiment has entrusted everyday citizens with the revolutionary power to choose. We choose the men and women who represent us. We choose how to balance the intimate relationship between a free people and its government. We choose whether to send a member of our community to prison.
But we entrust our fellow Americans with the power to make these choices because we believe that a virtuous people will be equipped to make the right choices—principally because we assume that our citizens will be prepared to discern truth from fiction. And we feel comfortable in that assumption because we’ve devised a system of laws—based on evidence, burdens of proof, and a time-tested set of rules—to help us assess the veracity of contested claims. In this way, the jury system isn’t simply a means of ensuring fair trials. Rather, it’s a way of training free citizens to make difficult decisions for themselves.
Today, this whole system is being undermined by the proliferation of false information—especially on the internet. But it’s one thing to have our geopolitical and ideological enemies—whether China, Russia, or the Muslim Brotherhood—pushing unverified claims about our closest allies into our cell phones. It’s another thing entirely for The New York Times, a supposed “paper of record,” and one of its Pulitzer Prize–winning journalists to offer a story that—in its disregard of basic evidence-gathering norms, its unwillingness to investigate the opposing side’s position, and its inversion of common sense—violates the fundamental rules of fairness and due process that have, for centuries, served as the bulwark of our democracy.
In his explosive essay, Kristof accused Israel of using sexual violence against detained Palestinian prisoners as a kind of “standard operating procedure.” Kristof’s claim is thus not merely that a few rogue Israeli prison guards sometimes behave illegally—as happens in all Western democracies, including our own. It is, instead, that the Israeli government has implemented a systemic policy of deploying sexual violence against Palestinian prisoners on a massive scale.
The timing of the essay is itself troubling. Weeks ago, the independent commission charged with investigating, and reporting on, Hamas’s widespread use of sexual violence against Israelis on October 7 informed the Times that it would be releasing its report on Hamas’s egregious sex-crimes violations on or around May 12. According to the Israeli Foreign Ministry, when the commission offered to provide the Times with its findings, the Times said it was not interested. But then, on May 11, one day before the commission’s report was set to be published, the Times ran Kristof’s piece, which flips the script by portraying the victims of mass sexual violence as the perpetrators. (The Times denies the Israeli Foreign Ministry’s version of events and insists that there is no relationship between the timing of the commission’s report and Kristof’s column.)
But we should recognize that this pre-emptive co-opting of the real story here—the systemic victimization of Israeli women and girls—is no innocuous question of timing. As any experienced trial advocate or jury consultant can attest, the psychological doctrine of primacy—which explains why a fact finder is often most persuaded by the story he hears first—dictates the order in which evidence is produced, and witnesses are called, in many American trials. The Times later ran a shorter story about the Israeli commission’s report, but by then, as the doctrine of primacy teaches us, it was too late.
In law as in logic, we can and should use a party’s conduct in deciding whether we believe what the party has to say—principally because that conduct may help us understand the party’s incentives, its biases. And the Times’s conduct as it relates to a story about Hamas’s sex crimes—followed in quick succession by its decision to publish an inflammatory opinion piece about supposed Israeli sex crimes—tells us a lot about the Times’s biases.
As at May 2026, no public criminal indictment has been filed against Ben Roberts-Smith, so there is currently no formally appointed prosecutor or trial judge. When it comes to the trial, the judge would likely be a senior Supreme Court judge experienced in long criminal trials, national security issues, and complex jury management. The specific judge would be assigned administratively by the court closer to trial. The prosecution would almost certainly be conducted by the Commonwealth Director of Public Prosecutions.
And we’ll all be watching.