Latest / Real Crime with Adam Shand / Beyond Reasonable Doubt: The Ben Roberts-Smith Case | Philip Dunn KC

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Beyond Reasonable Doubt: The Ben Roberts-Smith Case | Philip Dunn KC · Real Crime with Adam Shand

0:05
Speaker 1: Approach production.
0:14
Speaker 2: Welcome to Real Crime with Adam Shann I'm your host,
0:17
Speaker 2: Adam Shand The prosecution of former SAS Corporal Ben Robert
0:21
Speaker 2: Smith for murder war crimes is shaping to be one
0:24
Speaker 2: of the most important tests of our legal system in
0:27
Speaker 2: recent years.
0:28
Speaker 1: He's at the center of one of the most high
0:30
Speaker 1: profile criminal cases in our country's history, and tonight, accused
0:34
Speaker 1: war criminal Ben Robert Smith has come out swinging.
0:39
Speaker 3: The Victoria Cross.
0:40
Speaker 2: Recipient and our most highly decorated living serviceman is charged
0:44
Speaker 2: with allegedly ordering or carrying out the execution of five
0:47
Speaker 2: unarmed Afghan detainees who pose no threat to Australian forces.
0:53
Speaker 2: Ben Robert Smith has been charged with the murder of
0:55
Speaker 2: five unarmed Afghan civilians during his deployment with the SAS.
1:02
Speaker 2: These charges followed a long campaign by The Sydney Morning
1:05
Speaker 2: Herald and The Age newspapers and the Nine Television network,
1:09
Speaker 2: which ended up in the civil courts. When Robert Smith
1:12
Speaker 2: sued those outlets for defamation. It lost that action when
1:16
Speaker 2: the judge found that, on the balance of probabilities, he
1:19
Speaker 2: had committed those heenous offenses, a finding.
1:22
Speaker 4: Robert Smith's legal team immediately flagged for appeal. The verdict
1:27
Speaker 4: was hailed by nine Entertainment and The Age as a
1:30
Speaker 4: vindication of their years long investigation.
1:35
Speaker 2: Many seem to think that this loss in the civil
1:38
Speaker 2: court will mean that his criminal conviction will be a
1:41
Speaker 2: mere formality. I don't agree with that and stick firmly
1:45
Speaker 2: to the view that he is innocent until proven guilty.
1:49
Speaker 5: In a criminal court, the prosecution must prove its case
1:52
Speaker 5: beyond reasonable doubt, a far higher bar than the balance
1:56
Speaker 5: of probabilities applied in civil law.
2:00
Speaker 2: I think it's important we understand the proper way given
2:03
Speaker 2: to the civil verdict and what in the evidence will
2:06
Speaker 2: have in the criminal proceedings. I recently spoke to one
2:09
Speaker 2: of Australia's most experienced defense barristers, Philip dunkc, and here's
2:14
Speaker 2: what he had to say.
2:18
Speaker 1: There's great comradeship at the bar, there's great friends, there's
2:22
Speaker 1: interesting cases. There's always that sort of I mean, I'm
2:26
Speaker 1: getting paid to help people, which is silly into it
2:29
Speaker 1: and occasionally, you know, you really do help people. And
2:33
Speaker 1: in addition to that, you know, working out the rat
2:37
Speaker 1: is the hardbit. The rival alturnative theory to the crown case.
2:41
Speaker 1: There is another alternative to beyond reasonable doubt. And all
2:44
Speaker 1: those things I find challenging and interesting, and I feel
2:48
Speaker 1: envious of barises are just starting out. I wish I
2:51
Speaker 1: was starting again. That'd be great.
2:54
Speaker 3: Well, that's good, is it?
2:55
Speaker 2: Because I can't say the same thing for the media
2:57
Speaker 2: starting out today is not as good as it was
3:01
Speaker 2: when I started, and it's much reduced. And the law,
3:06
Speaker 2: by comparison, is more robust and more needed and more
3:09
Speaker 2: resilient than ever. And we look at places like America
3:12
Speaker 2: where the authoritarian yoke is being applied to society and
3:16
Speaker 2: the courts are literally the bullwark.
3:19
Speaker 1: Well they have to be, don't they They have to be.
3:22
Speaker 1: But golly, you know, things are changing. As somebody said
3:27
Speaker 1: to me, things are changing in the village.
3:29
Speaker 3: And they are.
3:30
Speaker 1: And I don't know if for better or worse, but
3:33
Speaker 1: certainly a lot of ways for that.
3:36
Speaker 3: Well, things are always changing.
3:37
Speaker 2: I mean, I think things are always changing, and I
3:40
Speaker 2: guess we reflected some stage whether it's.
3:42
Speaker 3: Better or not. And I do see all this kind.
3:45
Speaker 2: Of judicial adventurism and political judicial adventurism.
3:50
Speaker 3: The Ben Roberts Smith case.
3:52
Speaker 2: May well be looked upon in that way, but it's
3:56
Speaker 2: important that we have this discussion. I think there's it's
3:58
Speaker 2: really just a one oh one of the criminal law
4:01
Speaker 2: as it applies to this, and I thank you for
4:04
Speaker 2: giving me some time today to discuss that and just
4:07
Speaker 2: very basic differences. I think what we need to get
4:09
Speaker 2: clear in people's minds from the beginning is the difference
4:13
Speaker 2: between a verdict on the balance of probabilities and one
4:17
Speaker 2: beyond reasonable doubt. Because some people seem to think that
4:20
Speaker 2: because Ben Robert Smith has lost a defamation case, that
4:24
Speaker 2: he is now an adjudged war criminal and there's almost
4:27
Speaker 2: no need for the criminal action.
4:31
Speaker 3: How do we look at those different that difference.
4:33
Speaker 1: Well, Ken Roberts Smith is in a bit of an
4:35
Speaker 1: unfortunate position, probably for three main reasons. The first is
4:41
Speaker 1: that he is a significant public fear and that carries
4:46
Speaker 1: with it some advantages, but it carries with it considerable
4:49
Speaker 1: disadvantages in a country like Australia, where people will form
4:53
Speaker 1: their views about him without really knowing him. Secondly, he's
5:00
Speaker 1: been treated differently to the ordinary Australian citizen by the
5:05
Speaker 1: Australian Federal Police. In my view, he's been treated differently
5:10
Speaker 1: because they arrest him publicly when there was absolutely not
5:14
Speaker 1: only was there no need to do that, but they
5:16
Speaker 1: have police officers dressed in black with firearms, They have
5:20
Speaker 1: Channel nine waiting. They arrest him in dramatic circumstances and
5:24
Speaker 1: take him away. It's widely broadcast, and Channel nine in
5:29
Speaker 1: particular seem to have some sort of in with the
5:31
Speaker 1: federal police because they get the inside running, which causes
5:35
Speaker 1: suspicions about Bass and partiality, all of which cast him
5:39
Speaker 1: in a bad light. So he's treated differently as a
5:42
Speaker 1: high poppy, and then ultimately he's treated differently again because
5:49
Speaker 1: there's a lot of widespread publicity to the defamation proceedings
5:53
Speaker 1: which he took and ran a long time, where he
5:56
Speaker 1: was trying to establish what his reputation was and is
6:02
Speaker 1: when he shouldn't have to as a hero and a
6:04
Speaker 1: PC winner. But the newspapers spent a fortune a fortune
6:10
Speaker 1: along with the television station to prove their case against
6:14
Speaker 1: him that they hadn't defamed him, which meant bringing in
6:17
Speaker 1: witnesses who we now know were being given immunities and indemnities,
6:22
Speaker 1: bringing in Afghan nationals, including at least one person who
6:26
Speaker 1: apparently can't see very well who's able to identify Robert
6:30
Speaker 1: Smith from three hundred meters that he can't tell how
6:33
Speaker 1: many fingers are on somebody's hand in the witness box
6:35
Speaker 1: holding it up, and you then trumpet that he lost
6:39
Speaker 1: the defamation case after the might of the media and
6:42
Speaker 1: the press has been turned against him and infer that
6:45
Speaker 1: he's guilty with constant leaks. I think he's being treated
6:49
Speaker 1: in a very shabby and dishonest way, frankly, and.
6:54
Speaker 3: Let's break that down a little bit.
6:56
Speaker 2: The arrest was very public, and it did have the
7:01
Speaker 2: impression of somebody who has been pulled off an aircraft
7:04
Speaker 2: in front of his He looks like a flight risk
7:07
Speaker 2: in that scenario, and they've got to grab him there
7:10
Speaker 2: what would be the normal course of a I believe
7:13
Speaker 2: he actually offered himself to be arrested in a police
7:15
Speaker 2: station without the glare of publicity.
7:17
Speaker 1: Well, from my long experience in the law, it's very
7:21
Speaker 1: unusual if somebody, through their lawyers, contacts the police and says, look,
7:25
Speaker 1: if you want to talk to me or you want
7:27
Speaker 1: to arrest me, let me know and I'll come. And
7:31
Speaker 1: I understand that's what his lawyers have done. Everybody knows
7:34
Speaker 1: where he lives, he hasn't run away. He's arranged for
7:37
Speaker 1: his luwers. If you need me, I'll come down voluntarity
7:40
Speaker 1: of the police station. So why do you go through
7:42
Speaker 1: the charade of having a dramatic arrest and have Channel
7:46
Speaker 1: nine there to film it? And if you ask that question,
7:49
Speaker 1: you can only think because a they want to get
7:51
Speaker 1: some publisty for themselves, and b they want to degrade
7:54
Speaker 1: and downplay the character of Ben Robert Smith.
7:58
Speaker 3: Might just recast one point.
8:00
Speaker 2: The footage that we saw was actually filmed by the
8:03
Speaker 2: AFP and provided to the networks, so it wasn't literally
8:10
Speaker 2: nine on the tarmac.
8:11
Speaker 1: But.
8:13
Speaker 2: What we saw was the sort of astroturfing of the
8:15
Speaker 2: whole thing. There were stories ready, there was always ready
8:19
Speaker 2: to go.
8:20
Speaker 1: So why do they background the media like this and
8:23
Speaker 1: why do they do the sort of stage to rest
8:26
Speaker 1: when they don't have to. It really does make you
8:29
Speaker 1: wonder about their motives.
8:31
Speaker 2: What's your thought about those motives? Their AFP, to me,
8:34
Speaker 2: is a police force. It's always sort of seeking jurisdiction
8:37
Speaker 2: and relevance, and this seems to be a big ticket
8:40
Speaker 2: item for them.
8:42
Speaker 1: In my experience, there is a kind of fundamental difference
8:44
Speaker 1: between the AFP and the state police forces. And that
8:49
Speaker 1: is in the practical hands on experience of the individual investigators.
8:54
Speaker 1: I'm not saying there's some very good ones in the AFP,
8:58
Speaker 1: but the people who work in a big pole on
9:00
Speaker 1: New hoth Wales Police or Western Australian Police, they work
9:03
Speaker 1: their way through the ranks as uniformstools. Then they go
9:05
Speaker 1: to detective training school and they do a number of
9:08
Speaker 1: investigations and if they're going to be involved in a
9:12
Speaker 1: high scale or a high publicity case, you'll tend to
9:15
Speaker 1: find that they're very experienced operators. The AFP don't seem
9:20
Speaker 1: to have enjoy that reputation. A lot of their investigators
9:24
Speaker 1: are extremely well intentioned, but not terribly experienced. But there's
9:28
Speaker 1: got to be I just find it really wrong that
9:33
Speaker 1: they do this film to rest and then distribute it
9:37
Speaker 1: at large and have media releases like this where they're
9:41
Speaker 1: painting Ben Roberts Smith in a very dark light and
9:44
Speaker 1: bad light.
9:45
Speaker 2: And there seems to have been, to your point, a
9:48
Speaker 2: process of leaking or backgrounding, whatever you want to call it,
9:52
Speaker 2: to one particular media outlet and one particular journalist, you
9:54
Speaker 2: could say, for a long period of time for someone
9:58
Speaker 2: who must eventually face a jury of twelve over their peers.
10:03
Speaker 2: This could be seen to be tilting the scales of
10:07
Speaker 2: justice towards guilt rather than the presumption of innocence.
10:11
Speaker 1: Well, if you apply the pub test. In other words,
10:14
Speaker 1: what's the conversation around the barrow? What's the conversation around
10:17
Speaker 1: the water Cooper Ben Roberts Smith has become a hot
10:19
Speaker 1: topic of conversation and people are forming views about him
10:25
Speaker 1: based on what they read. These aren't facts. These are
10:29
Speaker 1: some other person's point of view and slanted and basts
10:32
Speaker 1: in various ways depending on who you're talking to. And
10:35
Speaker 1: so you know there's been a grand spell in the
10:38
Speaker 1: criminal law. When you defend high profile people, whether it's
10:42
Speaker 1: Cardinal Hell or whether it's Viki's or whether it's a
10:47
Speaker 1: Lebanese warlord in the tobacco game, people have views which
10:51
Speaker 1: may or may not be correct, but they have a
10:53
Speaker 1: view about them. And the elephant in the room is
10:57
Speaker 1: that kind of unconscious thinking, that unconscious prejudice about the person.
11:03
Speaker 1: I mean, if you represent a priest charge with sexual
11:07
Speaker 1: offenses against children, you can bet your bottom dollar that
11:11
Speaker 1: half the jury won't be looking at this case on
11:14
Speaker 1: its individual merits that they'll start with the preconception that
11:17
Speaker 1: the priest is a kiddy fiddler. It's the same with
11:20
Speaker 1: Cardinal Pebble. The evidence against him was scant, and yet
11:24
Speaker 1: people formed views about him and were passionate about their
11:27
Speaker 1: views without knowing the facts. And the same backgrounding, the
11:32
Speaker 1: same working up of emotions and feelings, and the same
11:36
Speaker 1: kind of partisan broadcasting has really created an environment which
11:41
Speaker 1: creates difficulties for Ben Robert Smith defending himself.
11:45
Speaker 2: But I guess also opportunities for his defense counsel because,
11:48
Speaker 2: as I say, they're going to have to select a
11:51
Speaker 2: jury from the community, and there's barely going to be
11:55
Speaker 2: a person who hasn't heard of the pre trial publicity.
11:58
Speaker 2: And this, as you say, this presumption that he's guilty.
12:02
Speaker 1: No, no, Adam, the defense doesn't get to select the jury.
12:06
Speaker 1: This is not America. You don't go through a jury
12:09
Speaker 1: panel process. What happens in Australia is that you have
12:15
Speaker 1: a limited right to challenge. And in Victoria, for example,
12:18
Speaker 1: in a trial it's three, you get three challenges, and
12:23
Speaker 1: you don't know who your jurors are. They come by number,
12:26
Speaker 1: they come anonymously, and they go anonymously so you don't
12:29
Speaker 1: get a chance to ask do they have a view,
12:32
Speaker 1: if they formed in the military, do they work in
12:34
Speaker 1: the government, or whatever it might be. You just don't
12:36
Speaker 1: get that information because of their protection of the jurors,
12:40
Speaker 1: they are anonymous, so you don't get to select the jury.
12:44
Speaker 1: You have a limited right to challenge without cause, and
12:48
Speaker 1: then you do have a right to challenge with cause,
12:51
Speaker 1: which is virtually unheard of in my experience of fifty
12:54
Speaker 1: years in the criminal law, because you don't know who
12:57
Speaker 1: the jurors are.
12:59
Speaker 2: I mean, I've seen in other cases where there's been
13:01
Speaker 2: a lot of publicity that one of the first motions
13:04
Speaker 2: of the defense is that by Clark can't get a
13:06
Speaker 2: fair trial because of all the personality and the presumptions
13:10
Speaker 2: of his guilt even before we got in the room.
13:13
Speaker 1: Sure, So what will happen there is that it's very
13:17
Speaker 1: unusual for a trial to be virtually unheard of for
13:21
Speaker 1: a trial to be stopped because of the extreme prejudice.
13:24
Speaker 1: But what they tend to do is that they might
13:27
Speaker 1: have a cooling uproote or the trial of your journey
13:29
Speaker 1: for six months or twelve months in Ben Roberts Smith case,
13:33
Speaker 1: because there's some sort of connection between the Australian Federal
13:37
Speaker 1: Police Channel nine and the age where the information passes
13:41
Speaker 1: backwards and forwards. What happens is there's every interest in
13:45
Speaker 1: keeping the story going from it's been a good story
13:47
Speaker 1: for Nick McKenzie in the age.
13:49
Speaker 2: Well it has and do you think that's going to
13:52
Speaker 2: be a factor ultimately and how this trial is conducted.
13:55
Speaker 3: And the outcome.
13:55
Speaker 1: Absolutely, because people will form views consciously or subconsciously, and
14:00
Speaker 1: the elephant in the room for a high profile person,
14:02
Speaker 1: I mean, let's move away from Ben Real Smith. Let's
14:05
Speaker 1: talk about Cardinal Pell, Let's talk about Lindy Chamberlain, Let's
14:09
Speaker 1: talk about Aaron Patterson. Talk about these people, and what
14:12
Speaker 1: you're talking about is the general public have a view.
14:17
Speaker 1: Many of them have a view created and formed by
14:20
Speaker 1: the media, publicity. And in those three cases, Patterson or
14:25
Speaker 1: Lindy Chamberlain or Cardinal Pell, there was very negative publicity
14:30
Speaker 1: about all three of them for months and months and
14:34
Speaker 1: months and months. So it would be hard to find
14:38
Speaker 1: somebody on the jury panel who didn't have a view
14:41
Speaker 1: as a result of that relentless publicity, and it was negative.
14:46
Speaker 1: That doesn't happen if you're Joe missus Smith or mister Smith,
14:51
Speaker 1: and you come along charged with murder or whatever it
14:54
Speaker 1: may be. The public doesn't have a view about you.
14:57
Speaker 1: They don't have a preconceived view shaped by the media.
15:01
Speaker 2: And as you say, the possible landidote to this is
15:03
Speaker 2: to have a cooling off period six months or a
15:05
Speaker 2: year before you go to trial. But for the accused
15:08
Speaker 2: who's reporting on bail three times a week, he can't travel,
15:12
Speaker 2: he can't work more or less.
15:15
Speaker 3: He actually probably could work, but it's limited.
15:17
Speaker 2: This is going to be a torturous process for an
15:19
Speaker 2: accused in a high profile case like this.
15:22
Speaker 1: Yes, and I understand from some of the press that
15:26
Speaker 1: I've been reading, likely about Ben Robert Smith, it's anticipated
15:29
Speaker 1: in the granting of bail that it could be years
15:32
Speaker 1: before his case comes on. So can you imagine the
15:35
Speaker 1: stories that we're going to have over the next three years.
15:37
Speaker 1: But apart from that, the pressure on financial and emotional
15:41
Speaker 1: on Ben Roberts Smith and his family and those who
15:44
Speaker 1: support him is considerable. And as a practitioner has done
15:49
Speaker 1: lots of murder trials and criminal trials, this is a
15:52
Speaker 1: very wearing process for people. I find it bad enough
15:56
Speaker 1: worry about going to the dentist and I clean my teeth.
15:58
Speaker 1: You know, I think, God, what's going to happen. But
16:01
Speaker 1: not knowing what's going to happen really for the rest
16:04
Speaker 1: of your life. It's going to be in the hands
16:06
Speaker 1: of twelve persons who you don't know, and you're being
16:09
Speaker 1: gunned down in a sense by the media. Is just
16:13
Speaker 1: a very very stressful situation.
16:17
Speaker 2: That's right, and the Age, Cinny Morning Herald and Channel
16:19
Speaker 2: nine have been literally barracking for this guy's guilt. In fact,
16:23
Speaker 2: the language post the defamation case has been pretty much
16:26
Speaker 2: a judged war criminal, proven war criminal. Explain what that
16:31
Speaker 2: judgment actually means in real terms. You've lost the case
16:35
Speaker 2: on the balance of probabilities. What does that actually refer to?
16:39
Speaker 2: What is not proven war criminal?
16:41
Speaker 1: It's been found that it's more likely than not that
16:46
Speaker 1: in relation to some of the allegations made by the Age,
16:48
Speaker 1: City monte Are on Channel nine that in relation to
16:51
Speaker 1: a number of the allegations, they were more likely than not.
16:55
Speaker 1: It doesn't mean they've been proved. He hasn't been proved
16:57
Speaker 1: to be a war criminal law. What it was proved
17:00
Speaker 1: is that in terms of defamation law, that they ran
17:03
Speaker 1: an offense and they round it hard, and they defended
17:07
Speaker 1: themselves mightily. They ran an defense, and then they established
17:11
Speaker 1: that their account was more likely. It doesn't mean it
17:15
Speaker 1: was true. It's just more likely, not to the criminal standard.
17:18
Speaker 2: If we put that into numerical terms, and we're talking
17:21
Speaker 2: about fifty point one percent more likely than not.
17:25
Speaker 1: Well, I think you talk about fifty point one percent.
17:28
Speaker 1: That's it. It's more likely than not. Whether it's by
17:30
Speaker 1: a bigger or small proportion, it's more likely than not.
17:34
Speaker 1: But if you look at any statue of justice, and
17:37
Speaker 1: many of them are doorn the courts, and there's one
17:39
Speaker 1: of them pointing here to where you can't see the
17:41
Speaker 1: Supreme Court of Victoria, where the statue of justice is
17:45
Speaker 1: on the top. She's blindfolded. She holds from one hand
17:48
Speaker 1: to sword and other hand to scales. She's blindfolded because
17:52
Speaker 1: in theory, everybody comes before the courts before justice comes
17:57
Speaker 1: neutrally without some preconceived opinion. They're not black, they're not brown,
18:02
Speaker 1: they're not Muslim, they're not Christian, they're neutral. She's blindfolded,
18:06
Speaker 1: so she doesn't form a preconceived view. Secondly, in one
18:10
Speaker 1: hand she holds the sword, the punishment But on the
18:12
Speaker 1: other hand, the scales have to be tilted. They're not
18:16
Speaker 1: sort of fifty to fifty fifty one forty nine. They're
18:19
Speaker 1: tilted beyond reasonable doubt. And that's important because you don't
18:24
Speaker 1: convict people by guesswork or suspicion or reputation or innuendo,
18:28
Speaker 1: because the consequences are awful. If you get convicted of
18:32
Speaker 1: murder five countcs of murder, you won't see daylight again. Therefore,
18:37
Speaker 1: to get this right, you've got to make sure that
18:40
Speaker 1: a jury is convinced beyond reasonable doubt, not by guesswork,
18:44
Speaker 1: not by suspicion, not by is it more likely than not.
18:47
Speaker 1: You've got to get it right. And what's happening for
18:50
Speaker 1: this unfortunate man, who has served his country with great
18:54
Speaker 1: valor and got the highest award for bravery that you
18:57
Speaker 1: can get. What's happened to this man is he's being
19:00
Speaker 1: painted as a villain. He's been painted as a bad person.
19:04
Speaker 1: And I'll bet you right now there are many people
19:07
Speaker 1: and I've heard them talking at having coffee and the
19:09
Speaker 1: coffee shop downstairs below the law courts. They're people are
19:12
Speaker 1: forming views about Ben Roberts Smith, and some of them adverse.
19:16
Speaker 1: Oh no, you know, God, this is terrible. They don't know,
19:19
Speaker 1: but they're influenced by the media.
19:21
Speaker 2: And mainly on the basis of this verdict in the
19:23
Speaker 2: civil courts. My old grandfather, Jack sand kseqc. Said once
19:27
Speaker 2: that you don't go to the defamation courts looking for
19:31
Speaker 2: your reputation, You're going there for money.
19:34
Speaker 1: Well that's the reasonably, Well you may, but I would
19:39
Speaker 1: disagree with your grandfather, wise and well esteemed as he
19:42
Speaker 1: was in the law. A lot of people become obsessed
19:45
Speaker 1: by the fact they see themselves as discredited unfairly and
19:49
Speaker 1: attacked unfairly. And often when you take the media on,
19:53
Speaker 1: you take on the fullmart of the media, expensive lawyers
19:56
Speaker 1: and all the costs, and for the average citizen, you
19:58
Speaker 1: can't do that. I think people make the mistake. And
20:01
Speaker 1: if you look at the tragic mistakes in history, Oscar
20:03
Speaker 1: Wild sued in relation to being defamed as being gay,
20:08
Speaker 1: and look what happened to him. He finished up in
20:09
Speaker 1: a reading prison and wrote a very tragic tom the
20:13
Speaker 1: Ballot of Reading Jail, which really describes loss and anguish.
20:17
Speaker 1: But you know, it's sort of it's unfair. And what
20:21
Speaker 1: happens is that people do take their reputation seriously, and
20:25
Speaker 1: if somebody smooths you and throws mud at you, unfortunately
20:28
Speaker 1: it sticks. And some people don't do it for money.
20:31
Speaker 1: They do it. And I think Robert Smith didn't do
20:33
Speaker 1: it for money. He did it because he thought he
20:35
Speaker 1: was being unfairly treated. I speculate fair enough, fair enough,
20:39
Speaker 1: I think, well, listen, I think in this case he's
20:41
Speaker 1: being accused of murder. And at the end of the day,
20:44
Speaker 1: you've got a media outlet which is more or less
20:46
Speaker 1: saying they've been vindicated, and all the witnesses have given evidence,
20:49
Speaker 1: have been vindicated. And as I say, he's being described
20:53
Speaker 1: literally as an adjudged war criminal in and there's very
20:57
Speaker 1: little that Ben Roberts Smith can do now to deny that,
21:01
Speaker 1: apart from getting his day in the criminal court. How
21:05
Speaker 1: different is it when you step into the criminal court.
21:07
Speaker 1: The rules of evidence, and we talked about fifty point one.
21:10
Speaker 3: Percent in the civil court. Are we talking high nineties
21:14
Speaker 3: in the criminal court? In terms of the.
21:16
Speaker 1: Scales of justice have got to be children beyond reasonall doubt.
21:19
Speaker 1: You know, this is a different scenario. He's now not
21:23
Speaker 1: playing for his reputation, he's playing to save the rest
21:27
Speaker 1: of his life. If you're convicted of five merders, he
21:30
Speaker 1: will go to jail for a very very long time,
21:32
Speaker 1: and it would be a very if he ever gets released,
21:35
Speaker 1: we'd be a very very old man. So he's playing
21:38
Speaker 1: for keeps Now and he's playing with the hard ball,
21:42
Speaker 1: and they're coming for him. And unlike most people even
21:44
Speaker 1: only got the police after you and the authorities after you,
21:47
Speaker 1: he's got the police. It appears, it appears arm in
21:50
Speaker 1: arm with some very powerful media organizations.
21:54
Speaker 3: Yeah, it's diabolical, isn't it.
21:56
Speaker 1: I've spent my working life in the criminal courts, and
21:59
Speaker 1: I see how people react to stress. This is not
22:03
Speaker 1: a game of chance anymore for keeps And though he
22:07
Speaker 1: served his country well and faced the enemy and the
22:10
Speaker 1: fog of war, you know, he's now in a very
22:12
Speaker 1: different game, right.
22:15
Speaker 2: And when we talk about beyond reasonable doubt, the evidence
22:19
Speaker 2: has to meet that standard. And we've already seen the
22:22
Speaker 2: AFP the officer special investigator talk about in the media
22:25
Speaker 2: conference the deficiencies of their case that they don't have
22:29
Speaker 2: access to the crime scene, they don't have forensics, they
22:33
Speaker 2: don't have shell casings. All they have really largely is
22:38
Speaker 2: eyewitness testimonies.
22:40
Speaker 1: The law is built around witnesses giving evidence. But the
22:43
Speaker 1: reality is this, the human mind, the eye, and brain
22:49
Speaker 1: and perception are not CCTV cameras. They're not tape recorders,
22:55
Speaker 1: they're not disc recorders. The human memory is very fallible.
23:00
Speaker 1: It can make mistakes, and we all know that every
23:03
Speaker 1: day of the week. And when you asked to turn
23:05
Speaker 1: your mind back to things, and you may have a
23:07
Speaker 1: genuinely held view, or you may have a view which
23:11
Speaker 1: is shaped. And we all have the situation where our
23:14
Speaker 1: views are shaped, whether it's our work colleagues, or our
23:17
Speaker 1: life partners or our children. Tell us things and we
23:20
Speaker 1: tend to form views on it, which then puts a
23:24
Speaker 1: sort of tinted glasses on on how we see things
23:27
Speaker 1: because we're shaping them by what we've been told. And
23:31
Speaker 1: the fact is that the human memory is not reliable.
23:35
Speaker 1: So the way you have to test it is to
23:38
Speaker 1: see whether it's been consistent, whether it's been changed, was
23:42
Speaker 1: it being formed in a time when people are able
23:45
Speaker 1: to calmly detach, or has it been shaped and formed
23:49
Speaker 1: by events that have taken post the view. So that's
23:53
Speaker 1: where in many ways, circumstantial cases where you do have
23:58
Speaker 1: this crime scene where you do have the shell casings,
24:00
Speaker 1: where the angle of the bullets, the body, the hard
24:04
Speaker 1: evidence from you can draw conclusions, is in many ways
24:08
Speaker 1: far more reliable than a witnesses says I saw this
24:11
Speaker 1: happen from three hundred meters away, or somebody who consciously
24:15
Speaker 1: or subconsciously has got a motive to remember things in
24:19
Speaker 1: perhaps a different way to the way they actually happened.
24:23
Speaker 1: And in this case you've got four indemnified witnesses, people
24:27
Speaker 1: who otherwise might have been in trouble, criminally facing lengthy
24:32
Speaker 1: jail sentences, who have been given the opportunity of avoiding
24:37
Speaker 1: the possibility of a lengthy, life changing jail sentence if
24:41
Speaker 1: they can provide evidence or give evidence which is of
24:45
Speaker 1: assistance to the prosecution in this case sinking Ben Robert Smith,
24:50
Speaker 1: and so the witnesses and number of the witnesses have
24:52
Speaker 1: done so in a situation where you would certainly raise
24:57
Speaker 1: questions about have they consciously or subconsciously been motivated by
25:01
Speaker 1: protecting themselves.
25:03
Speaker 3: And those entities.
25:05
Speaker 2: How common is it for the federal DPP to do
25:10
Speaker 2: those sorts of deals, and what circumstances is this normally done?
25:14
Speaker 1: If ever, well, I'll talk about the AFP in a moment.
25:18
Speaker 1: But experienced police officers like those in Victoria or New
25:22
Speaker 1: South Wales or Queensland and the homicide Squad and other
25:26
Speaker 1: major crime investigation units have to do detective training courses,
25:30
Speaker 1: and in those detective training courses they are taught that
25:35
Speaker 1: those people who are potentially guilty themselves of crimes may
25:40
Speaker 1: have a motive consciously or subconsciously to assist the police
25:45
Speaker 1: and mislead the police about their own role or protect themselves.
25:49
Speaker 1: And so what happens is that police officers of experience
25:55
Speaker 1: know that accomplices or people who maybe have committed criminal
25:59
Speaker 1: acts have got a motivation to lie, to downplay their
26:02
Speaker 1: own role and blame somebody else. The granting of an
26:06
Speaker 1: indemnity and a serious crime is something that should be
26:10
Speaker 1: taken step by step, very seriously, because you can get
26:13
Speaker 1: it wrong and the police can be hoodwinked and tricked
26:18
Speaker 1: by cunning persons or clever persons, highly motivated persons. And
26:23
Speaker 1: it's been my experience in the courts and trials where
26:26
Speaker 1: the police have what are colloquially called rollover witnesses or
26:29
Speaker 1: indemnified witnesses. You've got to be very careful to see
26:33
Speaker 1: have they altered or changed their evidence so that they
26:36
Speaker 1: get their indemnity and walk away from their own criminal
26:39
Speaker 1: behavior or the possibility of being treated in charge of
26:42
Speaker 1: criminal offenses. Now in this case, to grant maybe four
26:48
Speaker 1: indemnities means they are really highly motivated to convict Robert Smith.
26:55
Speaker 1: And it also means normally that they're missing evidence because
27:01
Speaker 1: without the rollover witness the indemnified witnesses, the witnesses who
27:05
Speaker 1: are giving evidence so they won't be charged, they don't
27:08
Speaker 1: have independent evidence to establish the case. Because if they
27:12
Speaker 1: did have that, they wouldn't have to go to the
27:14
Speaker 1: extreme of offering somebody an indemnity from crime. And if
27:19
Speaker 1: you take away the indemnified witnesses, or the witnesses who
27:23
Speaker 1: may have a motive to lie, or the witnesses have
27:26
Speaker 1: a motivation if not to lie, to get it wrong,
27:30
Speaker 1: if you take that away, what is the independent evidence?
27:33
Speaker 1: And the hard question you're going to have to ask
27:35
Speaker 1: yourself as a jura is, let's put those witnesses to
27:38
Speaker 1: one side, and what are they got? What have they got?
27:42
Speaker 1: What's the crime scene, what's the angle of the bullets,
27:45
Speaker 1: what do the bodies say, what is the actual evidence
27:49
Speaker 1: that can't be altered the independent evidence, or is their
27:53
Speaker 1: case built entirely on the shifting and unreliable sands of
27:58
Speaker 1: people who are motivated consciously or subconsciously to assist the
28:02
Speaker 1: authorities to help themselves.
28:05
Speaker 2: Very good points. I'm not a lawyer, although I sound
28:08
Speaker 2: like one. I think you the name of one. I
28:13
Speaker 2: would have thought that in most normal situations, where you've
28:16
Speaker 2: got five people involved in alleged murders, you would charge
28:20
Speaker 2: them all and each one would have to put some
28:22
Speaker 2: sort of defense forward, saying that my superior officer pressured me,
28:26
Speaker 2: or I was following orders, I had no choice, and
28:30
Speaker 2: then that evidence would be used to exculpate you, but
28:33
Speaker 2: also to convict the person who put the pressure on
28:36
Speaker 2: his subordinates. Wouldn't that be a normal, conventional way of
28:39
Speaker 2: approaching this.
28:40
Speaker 1: That's not only normal, but it's proper because people tell lies,
28:46
Speaker 1: and so if people are telling different stories, you then
28:50
Speaker 1: need the independent tribunal, the jury to make a selection.
28:53
Speaker 1: But that hasn't happened here. No jury will ever get
28:57
Speaker 1: to draw the distinction between the persons because the police
29:02
Speaker 1: have decided that what the best for them to proceed
29:06
Speaker 1: is to indemnify four people, so they don't get to
29:09
Speaker 1: hear the contrary stories. They only get to hear one story,
29:13
Speaker 1: which is the prosecution story. There are many, many cases
29:17
Speaker 1: where you've got people charged, They've got different roles to
29:21
Speaker 1: play in the criminal offense, and the law says the
29:25
Speaker 1: normal rule is they should be tried together so that
29:29
Speaker 1: the independent tribunal can work it out rather than the
29:34
Speaker 1: prosecutors making a pick. So that's why I stress, what
29:38
Speaker 1: is the independent evidence when you take away the indemnified
29:42
Speaker 1: witnesses and what will happen in trials where you have
29:47
Speaker 1: witnesses who and I personally experienced trials where, for example,
29:52
Speaker 1: people are charged with murder and are co accused will
29:56
Speaker 1: plead guilty, not walk away, but plead guilty and say
30:01
Speaker 1: I did the wrong thing. I'm putting my hand up
30:04
Speaker 1: to take the punishm but I'm entitled to a discount
30:07
Speaker 1: because I'm now helping the authorities.
30:10
Speaker 3: That's the normal way which proceed.
30:12
Speaker 1: But a blanket kind of indemnification of potential co accused
30:17
Speaker 1: is extremely unusual and smacks of It's a bit odd,
30:23
Speaker 1: and one wonders why this decision was made. This is
30:27
Speaker 1: years and years and years after the event that there
30:30
Speaker 1: was the independent inquiry, then there's a special inquiry. What
30:36
Speaker 1: pressures were on those in the military, and what pressures
30:41
Speaker 1: were on the prosecutors to bring this to a resolution?
30:44
Speaker 1: What pressures were on them that led them to do
30:46
Speaker 1: something which is quite extraordinary. Rather than run a joy well,
30:50
Speaker 1: or indemnify more than one rather letting the jury work
30:54
Speaker 1: it out.
30:55
Speaker 2: Let's try to understand what this indemnity means in terms
30:58
Speaker 2: of his defense. If you're the defense team, how do
31:02
Speaker 2: you approach those witnesses? Are you able to try to
31:06
Speaker 2: pick holes in their stories? Or are they sacrisanct or
31:10
Speaker 2: what sort of protections are they.
31:11
Speaker 3: Afforded in the rough and tumble of the court.
31:15
Speaker 1: Well, basically, what do you do with anybody? If you
31:18
Speaker 1: see one, are they consistent? Have they said the same thing?
31:23
Speaker 1: Or does it alter and change? If anything has altered
31:26
Speaker 1: and changed, that's what I'd call an amber light when
31:29
Speaker 1: you're driving along the highway of the court trial. If
31:34
Speaker 1: a witness changes their story, that's an amberlt. If a
31:38
Speaker 1: witness is given a number of different versions, If a
31:42
Speaker 1: witness didn't have an opportunity to see, can I give
31:45
Speaker 1: you an example, I did a murder trial involving an
31:48
Speaker 1: outlaw motorcycle gang and a potential accused there was given
31:55
Speaker 1: an indemnity. The accused was spoken to prior to getting
32:00
Speaker 1: the indemnity by the investigating police, and he said, I
32:05
Speaker 1: in a position which he marked, and he said this
32:09
Speaker 1: is where I was when the shooting took place. What
32:11
Speaker 1: happened is the police came back to him and said,
32:13
Speaker 1: we don't think you're telling us the truth. And he
32:17
Speaker 1: was an interviewed two or three more times. He'd actually
32:20
Speaker 1: been injured in the shooting, so before the police had
32:23
Speaker 1: spoken to him, he'd given an account of what happened
32:26
Speaker 1: to the ambulance officers and at the hospital. So he
32:29
Speaker 1: got the ambulance hospital, then he got the first police,
32:32
Speaker 1: then he got the second police. The police interviewed him
32:35
Speaker 1: about five or six times. And as they started to
32:40
Speaker 1: say to him, look, we think you're involved in all
32:42
Speaker 1: of this, and you're a suspect and now got to
32:44
Speaker 1: warn you. And by the way, you're not an Australian citizen.
32:48
Speaker 1: You're facing deportation. As the pressure built up, his story
32:53
Speaker 1: started to change and ultimately he gave a version which
32:58
Speaker 1: she was then indemnified, which is unusual. Rather than bleeding
33:02
Speaker 1: guilty to something and having to face the consequences, he
33:05
Speaker 1: was indemnified totally. And the problem was that where he
33:09
Speaker 1: locked himself into saying that he was and gave absolutely
33:14
Speaker 1: convincing evidence and was adamant and shouted and banged the
33:18
Speaker 1: witness box, don't call me a liar, Oh, this is
33:20
Speaker 1: where I was. The defense was able to prove through
33:25
Speaker 1: the body worn camera footage of the first attending police
33:28
Speaker 1: officers that the car that he was said that he
33:31
Speaker 1: was standing behind wasn't ten meters from the shooting. It
33:34
Speaker 1: was one hundred and fifty meters from the shooting and obscured,
33:38
Speaker 1: and his view if he's behind that car was totally obscured.
33:42
Speaker 1: So he's a liar. He might have been an unwitting lie.
33:45
Speaker 1: He might have talked himself into thinking that's where he was.
33:48
Speaker 1: But the defense in that case were able to prove.
33:50
Speaker 1: But you not don't always have that luck. And so
33:53
Speaker 1: when you're present with somebody, especially who get up and
33:56
Speaker 1: fight for their evidence and say that's not true. You'recusing
33:59
Speaker 1: me a lie. I was there, I saw it. So
34:02
Speaker 1: the first test is are they consistent test is are
34:06
Speaker 1: they motivated by anything to have their conscious memory or
34:10
Speaker 1: subconscious memory change. Then you look at the opportunities to
34:13
Speaker 1: view and see what they say they saw, and the
34:15
Speaker 1: rest of it non and on it goes. But despite all,
34:20
Speaker 1: despite all the Lincoln Lawyer's best efforts, and despite Rump
34:23
Speaker 1: all of the Bailey, you don't always get the opportunity
34:27
Speaker 1: to unpick the witness. It comes down to their motivation.
34:32
Speaker 1: You don't always get that kind of evidence that the
34:35
Speaker 1: Lincoln lawyer got of the gunshot rescue on the car.
34:38
Speaker 1: You don't always get the body worn camera footage that
34:40
Speaker 1: I just talked about in the murder trial and I
34:42
Speaker 1: died in the biking shooting. You don't always get that.
34:44
Speaker 1: So it's word against word and there's the subconscious effect
34:48
Speaker 1: of witness, one witness after the other pointing a finger
34:51
Speaker 1: at Robert Smith.
34:53
Speaker 2: And I think this is a word versus word type situation.
34:56
Speaker 2: And I think the deficiencies in the evidence have been
34:59
Speaker 2: actually highlighted by the detectives and the first press conference.
35:03
Speaker 2: And when you approach trials like this, big expensive, very
35:07
Speaker 2: public trials, as I'm aware, the cost benefit analysis that's
35:12
Speaker 2: run by the Attorney General or the DPP, whatever authority
35:15
Speaker 2: is involved, and they tend to say, what is the
35:19
Speaker 2: cost of this prosecution going to be and what are
35:21
Speaker 2: our chances of success? Is it in the public interest
35:26
Speaker 2: to run this matter? Have I got that right?
35:29
Speaker 1: No? I put it this way. The Kommu DPP has
35:33
Speaker 1: a charter, has a set of rules that guide them.
35:39
Speaker 1: It's really not so much based around cost, but it's
35:44
Speaker 1: based around the merits of running the case, and it's
35:46
Speaker 1: based around will I run an unmeritorious case? So you
35:51
Speaker 1: can see, for example, there's considerable debate about the New
35:55
Speaker 1: South Wales Director of Public Prosecutions and the Australian newspaper
35:59
Speaker 1: seems to be always interested in her and near pointing
36:03
Speaker 1: a and they are very quick to write articles about
36:07
Speaker 1: a negative sort of a way about they the Australians
36:12
Speaker 1: Australian newspaper talk about is the kind of over prosecution
36:16
Speaker 1: in sex cases. So I would think that they would
36:19
Speaker 1: be guided by their rules of conduct and it's not
36:23
Speaker 1: entirely cost based at all in my view.
36:27
Speaker 3: Okay, well that's a relief.
36:29
Speaker 2: But there's no doubt there is a political element to
36:32
Speaker 2: this prosecution that's being talked about at the water coolers
36:35
Speaker 2: and in the pub and so forth, that there's a
36:36
Speaker 2: desire to get this done for somewhat political reasons. The
36:42
Speaker 2: criminal law and the courts have always been a very
36:45
Speaker 2: good bulwark against that kind of situation. Do you think
36:49
Speaker 2: at the end of the day, justice will be served
36:53
Speaker 2: and that the checks and balances beyond reasonable doubt, the
36:56
Speaker 2: burden of proof will assert itself, and that we won't
37:00
Speaker 2: see a long, expensive miscarriage of justice that might go
37:04
Speaker 2: all the way to the High Court and will probably
37:07
Speaker 2: not end until you're almost retired, for you're never retiring,
37:10
Speaker 2: but could be very unavailing the whole thing.
37:15
Speaker 1: My conviction, my strong conviction in all of my working
37:20
Speaker 1: life until very recently, is I'm a great believer in
37:23
Speaker 1: the legal system. I don't think there's nothing that can
37:26
Speaker 1: replace the legal system that we have in Australia. I've
37:30
Speaker 1: always thought of it as safeguarding the rights of the
37:33
Speaker 1: individual and it's a dance site better than other systems
37:37
Speaker 1: where the police form the view or the government forms
37:39
Speaker 1: the view and you get prosecuted and that's it. Unfortunately,
37:43
Speaker 1: in my old age, I'm starting to have a few
37:47
Speaker 1: concerns about the impact of the media on the modern jury,
37:54
Speaker 1: and I think cases like Pell, I think cases before it,
37:58
Speaker 1: like Lindy Chamberlain. I think possibly even cases like Erin
38:02
Speaker 1: Patterson have shaken my firm conviction in the equality and
38:07
Speaker 1: equalness of justice for all. And I think that there
38:09
Speaker 1: are some people in high profile cases who are cooked
38:13
Speaker 1: before they get to see the jury. And I fear
38:16
Speaker 1: that Ben Roberts Smith may be one of them.
38:18
Speaker 2: On that depressing note, Philip, I appreciate your views and
38:22
Speaker 2: your experience in this when I tend to have some
38:24
Speaker 2: of those fears myself want to hear it from you.
38:26
Speaker 3: I take it more.
38:27
Speaker 1: Seriously, but hope it doesn't impass those separate works. That's
38:31
Speaker 1: hope it works.
38:32
Speaker 3: Thanks Mail, appreciate that.
38:33
Speaker 1: Thanks you, Adam.
38:40
Speaker 2: That was Philip dun Casey bringing a much needed critical
38:42
Speaker 2: eye to a high profile case which is looking very
38:46
Speaker 2: political to me. Let's hope that Ben Robert Smith receives
38:49
Speaker 2: a fair trial when he finally gets inside a criminal court.
38:53
Speaker 3: Like phil, I have my doubts.
38:56
Speaker 2: If you want to report a crime, please call crime
38:58
Speaker 2: Stoppers on one eight hundred, triple three, triple zero, where
39:01
Speaker 2: you can always contact me on Adam Shand writer at
39:04
Speaker 2: gmail dot com.
39:05
Speaker 3: This has been Adam Shan for Real Crime.
39:07
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