WEBVTT - Ben Roberts-Smith Arrest: Law Expert Reveals What’s Really Going On 0:00:00.240 --> 0:00:03.320 James Glisten, Welcome to straight Talk mate. Thank you and 0:00:03.400 --> 0:00:06.120 as I really appreciate you coming on. I'm you're a 0:00:06.880 --> 0:00:10.360 practice manager of Glisten and associalist at Lawyers. You got 0:00:10.400 --> 0:00:14.040 two officers here in Sydney. You spent time I think 0:00:14.080 --> 0:00:15.200 as a police prosecutor for a. 0:00:15.200 --> 0:00:17.079 While, yeah, and a police officer as well, and. 0:00:17.120 --> 0:00:19.840 Police officer as well. Just gives a quick rundown of 0:00:20.160 --> 0:00:23.520 what your experience has been both as a police prosecutor. 0:00:24.000 --> 0:00:25.599 You know, what your law firm does is sort of 0:00:25.600 --> 0:00:27.720 work you do and why we're going to talk about 0:00:27.720 --> 0:00:31.160 Ben Roberts Smith in a moment. But where's the relevance 0:00:31.200 --> 0:00:33.559 between what you have learned, what you have seen, what 0:00:33.640 --> 0:00:36.120 you do relative to what we might be talking about 0:00:36.120 --> 0:00:37.320 in a relationship Ben Robert Smith. 0:00:37.600 --> 0:00:40.400 So it's interesting, like the police still have that where 0:00:40.440 --> 0:00:42.560 you go and be a prosecutor, but you have to 0:00:42.560 --> 0:00:43.640 spend time on the beat first. 0:00:43.680 --> 0:00:44.279 It's still the same. 0:00:44.360 --> 0:00:46.600 Yeah, it's still the same. So it's called the Accelerated 0:00:46.680 --> 0:00:50.320 Prosecuting Recruitment Program And when I joined they didn't have it, 0:00:50.400 --> 0:00:53.880 it wasn't operating it is now. And with that program, 0:00:53.880 --> 0:00:56.440 you spent like one year on the street, whereas when 0:00:56.480 --> 0:00:58.960 I joined, because it didn't exist, it was three. So 0:00:59.360 --> 0:01:03.080 I went through and I went through the academy. I 0:01:03.080 --> 0:01:05.040 did that while I was finishing my law degree, which 0:01:05.040 --> 0:01:06.760 was a terrible decision. It was a lot of work 0:01:07.080 --> 0:01:09.399 in a very short amount of time. And then I 0:01:09.600 --> 0:01:13.880 prosecuted after I'd finished all my beat policing, my straight 0:01:13.920 --> 0:01:18.119 policing in the city. So it was really interesting having 0:01:18.160 --> 0:01:22.360 that background because especially in a criminal context, because it's 0:01:22.400 --> 0:01:26.640 no longer theoretical or academic, right, because I've exercised the 0:01:26.640 --> 0:01:31.000 powers to arrest people, and I've seen the alleged victims 0:01:31.000 --> 0:01:34.200 of crime prior to a conviction, because it's all alleged. 0:01:34.200 --> 0:01:36.760 They're all complainants. They're not yet victims until it's proven. 0:01:37.080 --> 0:01:38.920 But I've also seen how it affects people who are 0:01:39.000 --> 0:01:41.640 arrested and who are charged with things, and it's never 0:01:42.400 --> 0:01:45.640 ever black and white, it's never clean cut. And then 0:01:45.760 --> 0:01:48.880 that compounded when I went to prosecuting, because as a prosecutor, 0:01:48.920 --> 0:01:51.880 you represent, yes, the state and the police, but you're 0:01:51.880 --> 0:01:55.000 also there to get the evidence from the complainants. Sometimes 0:01:55.040 --> 0:01:57.720 they really don't want to come because they don't want 0:01:57.760 --> 0:02:00.680 to relive whatever happened to them, and that has its 0:02:00.720 --> 0:02:04.040 own challenges. But you also see people who are self 0:02:04.080 --> 0:02:08.400 represented in comparison very minor things like traffic offenses, and 0:02:09.080 --> 0:02:11.880 they believe very strongly in their position, but they don't 0:02:12.000 --> 0:02:14.400 really know how to articulate it because there isn't a 0:02:14.440 --> 0:02:17.160 huge amount of education in this country at any level 0:02:17.360 --> 0:02:19.920 unless you go through a law degree at university to 0:02:20.040 --> 0:02:22.840 understand how it works and how court works. And it's 0:02:22.919 --> 0:02:24.640 very brave to do that, and I have a lot 0:02:24.639 --> 0:02:27.600 of respect for people who do self represent. And then 0:02:27.639 --> 0:02:31.280 of course, coming to the defense side of things, you 0:02:31.400 --> 0:02:33.679 see it again and a different side of it once 0:02:33.760 --> 0:02:37.120 more of how it's affecting them personally while they're waiting 0:02:37.280 --> 0:02:40.359 for a hearing or a trial date. What the risks are. 0:02:41.160 --> 0:02:44.280 How somebody who has lived a fantastic life and been 0:02:45.040 --> 0:02:47.280 a very valuable member of the community for a long 0:02:47.320 --> 0:02:50.400 time can either make one mistake or a relapse in 0:02:50.480 --> 0:02:53.000 judgment and then their entire life can change forever with 0:02:53.000 --> 0:02:53.720 a criminal record. 0:02:54.040 --> 0:02:56.320 And I can see how that sort of encourages people 0:02:56.360 --> 0:02:59.079 like you to stay in their career. But one of 0:02:59.120 --> 0:03:03.000 the things most people don't understand, and you will, and 0:03:03.040 --> 0:03:05.120 you've been on both sides of the legend. Now you've 0:03:05.120 --> 0:03:07.880 been on the prosecution and the defense side. These days 0:03:07.919 --> 0:03:10.720 on the defense side, but maybe you'd be great for 0:03:10.760 --> 0:03:14.239 you to explain that it's not the police who decide 0:03:14.240 --> 0:03:17.400 to take the case, that it's the state at a 0:03:17.440 --> 0:03:19.480 state level at the police level, or if you're at 0:03:19.520 --> 0:03:22.040 a federal level, which is the commonwealth level, if it's 0:03:22.040 --> 0:03:27.560 a commonwealth crime, it's in the case of New South Wales, 0:03:27.720 --> 0:03:32.440 as the Director of Public Prosecutions in the federal at 0:03:32.480 --> 0:03:34.600 the federal level, let's see, probably the Attorney General or 0:03:34.600 --> 0:03:38.360 something like that. Is that right? And those people are 0:03:39.160 --> 0:03:44.560 influenced by politicians too, the bureaucracy that sits above the DPP, 0:03:44.800 --> 0:03:47.760 the Director of Public Prosecutions and or the Attorney General 0:03:47.880 --> 0:03:50.600 at a Cornwuth level, they have an input because what 0:03:50.680 --> 0:03:53.120 happens is the cops arrest them. As I understand it, 0:03:53.320 --> 0:03:54.640 and tell me if I'm wrong, because it could have 0:03:54.680 --> 0:03:57.440 changed where the cops arrest the state crime might build 0:03:57.520 --> 0:04:00.880 up some resources around. The evidence gets handed over to 0:04:00.920 --> 0:04:04.400 the Director probably Prosecutions. They look at it and go, well, 0:04:04.440 --> 0:04:06.440 we think we've got to win a here, or it's 0:04:06.480 --> 0:04:09.400 not worth spending the money on it, so minor we're 0:04:09.400 --> 0:04:12.520 not going to bother about it, or it's important politically important, 0:04:12.680 --> 0:04:15.640 or a minister might even get involved because it might 0:04:15.640 --> 0:04:22.560 be about importation of cigarettes or policy reasons. Yeah, therefore 0:04:22.600 --> 0:04:25.760 a politician gets involved because this has some relevance I 0:04:25.800 --> 0:04:29.680 think to the Ben Robert Smith case. Oh, but you 0:04:29.760 --> 0:04:34.640 might explain how the decision for you as a prosecutor 0:04:34.920 --> 0:04:38.360 police prosecutor to take the case because you don't make 0:04:38.360 --> 0:04:41.840 the call, a cost benefit analysis has made and is 0:04:41.880 --> 0:04:42.880 sent up to the DPP. 0:04:43.560 --> 0:04:46.400 Yeah, so it's very much driven by policy. I mean, 0:04:46.920 --> 0:04:49.359 at the beginning of the Crimes Act, whether that's the 0:04:49.400 --> 0:04:52.080 domestic violence one or the General State Act, it sets 0:04:52.080 --> 0:04:55.680 out the objectives and they're the guiding policy aspects. Right. 0:04:56.040 --> 0:04:57.840 So when you're talking about offenses that end up in 0:04:57.880 --> 0:05:00.240 the lower court, so the local court, and that's a 0:05:00.279 --> 0:05:02.800 lot offenses. It can even be quite serious because we've 0:05:02.839 --> 0:05:05.839 moved a lot of really serious offenses down a level 0:05:06.000 --> 0:05:08.960 so that they can be dealt there quickly. That decision 0:05:09.240 --> 0:05:12.839 is dealt with by really the particular pack or the 0:05:12.839 --> 0:05:15.599 particular police station in charge of it, and they inform 0:05:15.640 --> 0:05:18.240 themselves by way of policy. When you talk about the 0:05:18.400 --> 0:05:20.520 DPP or the matters that go to the higher courts, 0:05:20.800 --> 0:05:24.120 it's even more pronounced because there's definitely a policy aspect, 0:05:24.160 --> 0:05:28.320 and when you're talking about the decision to prosecute something, 0:05:28.720 --> 0:05:31.480 there's an overarching principle which is whether or not it's 0:05:31.520 --> 0:05:35.280 in the public interest to run the prosecution, and it's 0:05:35.320 --> 0:05:36.799 a very very broad test. 0:05:36.920 --> 0:05:39.559 How to police bake that decision, Well, police generally don't. 0:05:40.080 --> 0:05:41.159 It does for that. 0:05:41.279 --> 0:05:42.839 It would be like in the state it would be 0:05:42.880 --> 0:05:47.359 the DPP, and in federal crimes that would usually be 0:05:47.400 --> 0:05:49.440 the Attorney General. But I'm sure there's lots of advice 0:05:49.480 --> 0:05:52.720 being given there. Yeah, and that decision is you know, 0:05:52.839 --> 0:05:54.080 you've got to remember this is meant to be a 0:05:54.160 --> 0:05:57.039 very transparent system, but it's very difficult to get a 0:05:57.040 --> 0:05:58.800 clear answer on some of these things, which kind of 0:05:58.839 --> 0:06:01.640 hurts the transparency asp. So when you talk about Ben 0:06:01.720 --> 0:06:04.200 Robert Smith, I mean, there's no doubt there's been a 0:06:04.240 --> 0:06:08.080 lot of division in this country everywhere in relation to 0:06:08.120 --> 0:06:10.640 how people feel about it. So you've got to really 0:06:10.680 --> 0:06:12.320 weigh that up as a factor when it comes to 0:06:12.400 --> 0:06:13.160 the public interest. 0:06:13.520 --> 0:06:16.520 It's interesting because media gets behind it and they start 0:06:16.560 --> 0:06:19.520 to make the politicians feel a bit nervous, a bit uneasy. 0:06:21.000 --> 0:06:24.479 I mean especially you know, it's unfortunate and I don't 0:06:24.600 --> 0:06:27.000 mean to jump on the Ben Robert Smith bandwagon, but 0:06:27.040 --> 0:06:30.000 it's such a magnificent spotlight in terms of the issues 0:06:30.240 --> 0:06:31.280 surrounding media. 0:06:31.080 --> 0:06:33.719 And the process for me and the overall process. I 0:06:33.720 --> 0:06:36.200 don't mean just the prosecutor the decision to prosecute, but 0:06:36.640 --> 0:06:40.320 the media's role in this stuff and public opinion role 0:06:40.400 --> 0:06:42.599 in this stuff and the decision is what's in the 0:06:42.600 --> 0:06:45.600 public interest? If you step back, how do you think 0:06:45.600 --> 0:06:48.000 people make that call about public interest? Do they look 0:06:48.000 --> 0:06:50.440 at what public opinion is and make it and say, well, 0:06:50.520 --> 0:06:52.480 it looks for a lot of biler against this, a 0:06:52.520 --> 0:06:54.159 lot of people in favor of it. Yeah. 0:06:54.680 --> 0:06:57.679 I think when it comes to this particular case, there's 0:06:58.120 --> 0:07:01.520 a big argument that can be made where you talk 0:07:01.560 --> 0:07:05.000 about our obligations when we sign up to treaties as 0:07:05.000 --> 0:07:06.599 a country. So when it comes to things like the 0:07:06.600 --> 0:07:09.560 International Criminal Court and all the treaties surrounding war and 0:07:09.560 --> 0:07:11.800 the way in which we can conduct ourselves. So on 0:07:11.800 --> 0:07:14.640 the one side, the argument may be that we have 0:07:14.680 --> 0:07:17.679 an obligation to show the world that we take this seriously, 0:07:17.720 --> 0:07:18.840 and it's not just lip service. 0:07:18.920 --> 0:07:19.880 We're the politicians. 0:07:19.960 --> 0:07:22.320 We're the politicians, that's exactly. And when I say we're 0:07:22.360 --> 0:07:24.720 generally speaking, that's what I'll be meaning. I certainly wouldn't 0:07:24.720 --> 0:07:29.560 speak for most Australians. Then on the flip side, you've 0:07:29.600 --> 0:07:32.680 got to look at not just how our reputation works internationally, 0:07:33.240 --> 0:07:37.480 but also how that affects us domestically as a country, because, 0:07:37.480 --> 0:07:39.000 as you said, it's caused a lot of division. It's 0:07:39.040 --> 0:07:42.200 become almost like a political chess piece. Everybody has a 0:07:42.240 --> 0:07:44.720 say on it, everybody wants to show their position on it. 0:07:44.800 --> 0:07:46.920 Well, here we are today even doing it, and I 0:07:46.960 --> 0:07:49.680 would ordinarily have this sort of conversation. But yeah, exactly, 0:07:49.760 --> 0:07:51.520 I mean I got a view on it. But it's 0:07:51.920 --> 0:07:55.720 so because I didn't think of the international aspect of it, 0:07:56.560 --> 0:07:59.360 which is I'm glad you raise that and how we 0:07:59.440 --> 0:08:03.800 look internationally because we have those sorts of policies here 0:08:03.880 --> 0:08:07.880 right now. The Paris Agreement, for example, the Paris Environmental 0:08:07.880 --> 0:08:10.240 Agreement that it was signed under a different government, by 0:08:10.240 --> 0:08:13.440 the way, but still the original signing of that signing 0:08:13.520 --> 0:08:17.120 up to that was how do we look globally in 0:08:17.240 --> 0:08:22.200 terms of our contribution to the global environment. And these 0:08:22.280 --> 0:08:26.800 are big, big policy decision which you and I as voters, 0:08:26.840 --> 0:08:29.480 we never have a chance. I haven't be saying because 0:08:29.480 --> 0:08:33.400 it gets built, and then there are iterations. One selection's 0:08:33.400 --> 0:08:36.920 over and those iterations change can change the overall thing 0:08:36.960 --> 0:08:39.200 over time. They just could slowly chip away it. So 0:08:39.320 --> 0:08:42.880 on an international basis, at a Conworth level, the com 0:08:43.120 --> 0:08:47.960 Crimes Act, which is talking about war crimes, which is 0:08:48.000 --> 0:08:50.400 what Ben Robert Smith has been charged with. He hasn't 0:08:50.400 --> 0:08:52.320 been charged with murder. He's been charged with a war crime. 0:08:52.400 --> 0:08:52.920 Is that correct. 0:08:53.080 --> 0:08:55.480 Yeah, I had a look at it last night. But 0:08:55.600 --> 0:08:58.840 there are five sequences. So there are five charges and 0:08:59.080 --> 0:09:03.120 some of them indicate direct involvement in an unlawful killing, 0:09:03.360 --> 0:09:05.760 a war environment. But what's interesting to me when I 0:09:05.800 --> 0:09:09.000 read through them is others refer to his sort of 0:09:09.240 --> 0:09:12.840 satellite involvement, so not directly being involved, but being around 0:09:12.840 --> 0:09:15.360 it when it happened. Now, typically when you see offenses 0:09:15.400 --> 0:09:18.040 like that, there's more than one defendant because to make 0:09:18.080 --> 0:09:19.520 that out you have to show that it occurred in 0:09:19.559 --> 0:09:20.320 the first sort. 0:09:20.160 --> 0:09:23.080 Of like a conspiracy or aiding a bedding or something very. 0:09:23.040 --> 0:09:25.640 Much like that. Yeah, so it's interesting to see those 0:09:25.720 --> 0:09:29.880 charges appear where nobody else has been arrested and is 0:09:30.480 --> 0:09:31.640 about to be put on trial. 0:09:31.880 --> 0:09:36.080 That's interesting because, by the way, a lot of the 0:09:36.120 --> 0:09:39.040 military who are now coming out and who are against 0:09:39.200 --> 0:09:41.880 the arrest or against the trial are actually saying that, like, 0:09:42.679 --> 0:09:45.960 where are the other people who involved, like particularly above 0:09:46.440 --> 0:09:50.680 Ben Rob Smith in terms of you know, like generals 0:09:50.760 --> 0:09:55.000 or the chain of command above him, Like someone's obviously 0:09:55.080 --> 0:09:56.960 told me to go towards some may have known about it, 0:09:56.960 --> 0:09:59.400 that didn't know about it, or quiesced in it, or 0:09:59.440 --> 0:10:02.640 whatever the case. Because it took a long time. What 0:10:02.720 --> 0:10:04.319 is this ten years ago or something a long time. 0:10:04.360 --> 0:10:06.360 It's actually longer than ten it's twenty years, I think, yeah, 0:10:06.440 --> 0:10:10.400 very long. So this is called a war crime, actually 0:10:10.480 --> 0:10:12.600 called a war crime in the Common Crimes Act YEES. 0:10:12.640 --> 0:10:15.880 So it's under the heading, it's under the subsection of 0:10:16.080 --> 0:10:16.600 war crimes. 0:10:16.760 --> 0:10:17.760 Really there's a heading and. 0:10:17.800 --> 0:10:20.280 Then there's heaps of them, so they list them and 0:10:20.280 --> 0:10:22.880 they seem to go on forever, right, But the way 0:10:22.920 --> 0:10:25.400 that it's been able to be brought is through something 0:10:25.440 --> 0:10:27.320 that a lot of people aren't aware of, which is 0:10:27.440 --> 0:10:31.280 what's called extra territorial jurisdiction or jurisdiction that applies in 0:10:31.360 --> 0:10:34.599 other countries but can be prosecuted here. 0:10:34.480 --> 0:10:39.720 Because if I murdered someone in I don't know, South 0:10:39.760 --> 0:10:42.800 America when I was over there, the New souths government 0:10:42.800 --> 0:10:45.400 would be bringing a charge of murder against me here 0:10:45.400 --> 0:10:47.920 in Australia. Is that right? No, they wouldn't because it 0:10:47.920 --> 0:10:49.920 happened somewhere else, that's right. But in terms of this 0:10:50.000 --> 0:10:54.679 commonwealth crime under war crimes, they have this extra territorial 0:10:55.640 --> 0:11:00.400 juristic jurisdiction because this happened in Afghanistan. So he wouldn't 0:11:00.400 --> 0:11:02.160 be able to get prosecuted by the New South Wales 0:11:02.480 --> 0:11:04.200 prosecutor for this crime. 0:11:04.480 --> 0:11:06.920 Well, it wouldn't. It wouldn't be the appropriate jurisdiction because, 0:11:06.960 --> 0:11:08.959 like you said, it's a commonwealth it's a federal defense. 0:11:09.480 --> 0:11:12.160 It really belongs in the federal sphere as opposed to 0:11:12.160 --> 0:11:12.920 the state sphere. 0:11:13.080 --> 0:11:14.760 But I don't know if anyone else has ever been 0:11:14.840 --> 0:11:17.559 prosecuted one of these things before under the Comonwealth Crimes 0:11:17.600 --> 0:11:19.559 Act wartime crime. 0:11:19.720 --> 0:11:23.160 I don't know for war crimes, but breakham morand was yeah, okay, 0:11:23.160 --> 0:11:23.640 good point. 0:11:24.160 --> 0:11:27.360 Like the crime was committed in the eighteen late eight 0:11:27.400 --> 0:11:30.360 in nineties in the Ball War. So this stuff's been 0:11:30.400 --> 0:11:31.559 around a long time. 0:11:31.760 --> 0:11:35.720 Yeah, in different iterations and frameworks. But it's not a 0:11:35.760 --> 0:11:38.520 new concept, and it doesn't just apply to war crimes 0:11:38.600 --> 0:11:42.560 for example. So you look at the recent hate speech laws, 0:11:42.640 --> 0:11:44.520 which is the easiest way to describe them, even though 0:11:44.559 --> 0:11:47.840 they're far more reaching than just speech and some of 0:11:47.880 --> 0:11:50.880 those offenses when it comes to you know, what it 0:11:50.920 --> 0:11:54.120 is hate speech, how it's tested. They also have extra 0:11:54.200 --> 0:11:57.040 territorial jurisdiction. So if you do it overseas and it 0:11:57.080 --> 0:11:59.520 affects a group in Australia, then when you come back 0:11:59.520 --> 0:12:03.199 you can still charge Wow. So and it's not new obviously. 0:12:03.280 --> 0:12:05.840 Child sex offenses is a big one. Yeah, Yeah, So 0:12:06.040 --> 0:12:09.160 there are clear instances where it's in the public interest 0:12:09.520 --> 0:12:11.520 because I think the public as a whole can get 0:12:11.559 --> 0:12:15.640 around prosecuting people who are accused of child sex offenses. 0:12:16.000 --> 0:12:17.880 But when you're looking at some of these other offenses, 0:12:17.880 --> 0:12:21.319 I think this power gets included, you know, hate speech, 0:12:21.400 --> 0:12:24.280 or with the Ben Roberts Smith case in particular, that 0:12:24.400 --> 0:12:26.960 starts to become a little bit more muddy because people 0:12:27.000 --> 0:12:29.400 aren't really sure. The public isn't even really sure as 0:12:29.440 --> 0:12:31.080 to whether or not this is in the public interest. 0:12:31.440 --> 0:12:34.600 Well, most of us wouldn't even understand it well enough 0:12:34.920 --> 0:12:37.160 to know whether those in my I don't know about 0:12:37.160 --> 0:12:38.520 the public interest. But if I look at it, is 0:12:38.520 --> 0:12:40.520 it in my interest? Right? Is it in the interest 0:12:40.559 --> 0:12:43.520 of Mike Boris r. The case against Ben Roberts fifth. 0:12:43.520 --> 0:12:46.560 We haven't seen something like this brought under the War 0:12:46.679 --> 0:12:49.640 Crimes part of the Commonwealth Crimes Act for a long, 0:12:49.720 --> 0:12:53.840 long long time that I've ever certainly that nothing is popular, 0:12:54.520 --> 0:12:57.200 and the decision to make it would have been would 0:12:57.200 --> 0:13:00.920 have come via would have been a policy desiason just 0:13:01.000 --> 0:13:05.960 some extent based on how we look to our global 0:13:06.000 --> 0:13:08.640 allies or whatever in terms of how we conduct ourselves 0:13:08.679 --> 0:13:12.600 in war, or how we allow people in our military 0:13:12.640 --> 0:13:15.760 to conduct themselves in war. They would have had had 0:13:15.760 --> 0:13:20.240 some impact on the decision making to actually proceed with this. 0:13:20.640 --> 0:13:23.600 I'm trying to give them excuses why it's taken twenty years. 0:13:24.640 --> 0:13:27.439 Well, one of the big issues, of course, and it's 0:13:27.520 --> 0:13:30.880 very difficult to speak about this without speaking to the evidence, 0:13:31.120 --> 0:13:32.800 which for example, I'm not allowed to do. I can't 0:13:32.840 --> 0:13:36.120 comment on anything that might and we'll understand the irony 0:13:36.160 --> 0:13:37.600 in a little bit here, But I can't comment about 0:13:37.640 --> 0:13:39.599 anything that might prejudice his case. 0:13:39.400 --> 0:13:41.000 And then you should explain because you're an officer of 0:13:41.000 --> 0:13:41.800 the court, right. 0:13:42.720 --> 0:13:45.880 But when you're looking at war crimes and they've happened, 0:13:45.960 --> 0:13:48.360 you know, we've got the time aspect over twenty years, 0:13:48.400 --> 0:13:51.200 we've got the distance aspect how far away it was. 0:13:51.640 --> 0:13:55.360 Difficulties in attending the scene of the alleged crime. Difficulty 0:13:55.400 --> 0:13:59.240 is in obtaining witness statements and evidence. It starts to 0:13:59.280 --> 0:14:03.880 really become a weighing up of yes, justice needs to 0:14:03.880 --> 0:14:06.000 be seen to be done, so it needs to be 0:14:06.000 --> 0:14:09.360 something that has perhaps tried irrespective of the outcome. But 0:14:10.480 --> 0:14:13.440 if it falls over terribly, and I'm not saying that 0:14:13.480 --> 0:14:15.640 it will, but if it falls over terribly because there 0:14:15.640 --> 0:14:20.080 simply isn't enough rock hard evidence to support the allegations, 0:14:20.760 --> 0:14:22.760 that's not in the public interest because that's not really 0:14:22.760 --> 0:14:24.240 going to put a lot of faith in the system 0:14:24.400 --> 0:14:27.160 at all. And then people who are skeptical that this 0:14:27.280 --> 0:14:30.640 was a political move will be you know, I guess 0:14:30.680 --> 0:14:32.680 in some ways validated by it, and they say, well, look, 0:14:32.720 --> 0:14:34.840 they didn't even have enough evidence in the first place. 0:14:35.040 --> 0:14:38.400 This is very interesting because as risky, very risky, so 0:14:38.800 --> 0:14:42.040 who ultimately is bearing this risk though, I mean, like, 0:14:42.120 --> 0:14:46.400 who's the person someone must be have sat there and said, okay, 0:14:46.480 --> 0:14:50.040 all those things someone's coming and said, look, minister, or 0:14:50.080 --> 0:14:53.720 look a head of the AFP or whoever you are. Look. 0:14:55.960 --> 0:14:58.880 On one hand, justice must be seen to be done. 0:15:00.280 --> 0:15:03.600 Allies or people who fight us in war will fight 0:15:03.680 --> 0:15:07.280 with us in war. I want to know what type 0:15:07.320 --> 0:15:09.880 of country we are in terms of the military we send, 0:15:09.920 --> 0:15:12.160 in terms of the values of the morals or those individuals. 0:15:12.200 --> 0:15:15.120 Do we fit within the conventions of how we conduct 0:15:15.160 --> 0:15:18.280 ourselves in war? And they're conventions we've signed up to. 0:15:18.960 --> 0:15:21.520 On one hand, but on the other hand, the gathering 0:15:21.560 --> 0:15:24.360 of evidence is going to be compromised to a large extent. 0:15:25.680 --> 0:15:28.920 Therefore we could lose, which will make it look like 0:15:28.920 --> 0:15:32.480 it was a witch hunt, in which case we've got 0:15:32.480 --> 0:15:34.040 a lot to lose. So someone has to sit there 0:15:34.080 --> 0:15:36.040 and go well on one hand and on the other 0:15:36.120 --> 0:15:39.640 hand that I mean, you've been involved at a state level, 0:15:40.440 --> 0:15:43.160 which is as I said earlier. Could be the police minister, 0:15:43.200 --> 0:15:46.000 it could be the DPP. But what do you think 0:15:46.040 --> 0:15:47.640 of some of the things that they were looking at 0:15:47.680 --> 0:15:49.680 in terms of this weighing up to decide to go 0:15:49.720 --> 0:15:52.240 with it as opposed to and are relicious not do it. 0:15:52.840 --> 0:15:56.280 So when I was prosecuting, I always tried very hard 0:15:56.720 --> 0:15:59.400 to make sure that my job was simple, which was 0:15:59.440 --> 0:16:01.520 not to secure or a conviction, and it was not 0:16:01.560 --> 0:16:03.960 to get a particular kind of punishment. It was just 0:16:04.000 --> 0:16:06.760 to put all of the evidence that should be admitted, 0:16:07.120 --> 0:16:09.600 judge should see, should see, and keep the stuff that 0:16:09.640 --> 0:16:13.200 shouldn't be out, and then make submissions. So if you 0:16:13.760 --> 0:16:16.360 sort of use that as the guiding principle of a prosecution, 0:16:17.480 --> 0:16:19.880 the decision that should have been made, the basis that 0:16:20.160 --> 0:16:22.640 really should have underpinned this entire decision when it comes 0:16:22.640 --> 0:16:25.720 to Ben Robert Smith, is is there enough evidence that 0:16:25.760 --> 0:16:29.720 we are comfortable, almost certain that can be admitted to 0:16:29.800 --> 0:16:31.360 bring the prosecution. 0:16:31.240 --> 0:16:33.760 Which would be otherwise known as a primer facy case. 0:16:33.800 --> 0:16:36.520 That's exactly what it would be now, Yeah, but in 0:16:36.560 --> 0:16:40.160 your world, But which is a lot of times, is 0:16:40.360 --> 0:16:42.760 you know what happens in the state at a state 0:16:42.840 --> 0:16:45.040 level that gets looked at by a judge early on, 0:16:45.240 --> 0:16:47.280 and you know they decide whether they're going to proceed 0:16:47.360 --> 0:16:50.120 or not going to proceed with the case. Is that 0:16:50.200 --> 0:16:52.400 something that happens at the Conwawth level. Is that a 0:16:52.480 --> 0:16:56.240 thing at a common Crimes Act? I mean, does it 0:16:56.280 --> 0:16:58.480 look that get looked at by some lower cord or 0:16:58.520 --> 0:17:00.640 whatever to make their decision. 0:17:00.800 --> 0:17:02.880 Well, often these things they almost always start in the 0:17:02.880 --> 0:17:05.359 lower court. So even Ben's case at the moment is 0:17:05.400 --> 0:17:07.840 technically going to start in the local court, right, the 0:17:07.840 --> 0:17:10.520 New South Wales local Court when it comes to bail. Right, 0:17:10.560 --> 0:17:13.760 And there are a number of really technical and generally 0:17:13.800 --> 0:17:17.040 confusing ways in which the courts share jurisdiction for a 0:17:17.040 --> 0:17:18.879 little bit before it gets palmed off to one or 0:17:18.920 --> 0:17:22.280 the other. Right, right, But when we're looking at how 0:17:22.320 --> 0:17:25.000 this has looked at and who looks at it, there 0:17:25.040 --> 0:17:27.040 is a real issue here which is and I don't 0:17:27.080 --> 0:17:29.520 think that this is going to be controversial. We're talking 0:17:29.600 --> 0:17:33.200 about the SASA, right, We're talking about a very serious 0:17:33.280 --> 0:17:38.000 organization with very serious jobs and a lot of that material, 0:17:38.080 --> 0:17:40.560 how they operate, who they are, things that were done, 0:17:40.640 --> 0:17:42.760 records they're not going to be released to the public 0:17:42.800 --> 0:17:43.800 because could. 0:17:43.640 --> 0:17:45.920 You explain that? So, I mean apart from the public 0:17:45.920 --> 0:17:49.080 and not getting those things admissible in the court, I mean, 0:17:49.200 --> 0:17:53.400 can they lead laws around this? Says no, we're not. 0:17:53.880 --> 0:17:56.480 We're the military, don it. We're not going to give 0:17:56.480 --> 0:17:57.160 you that information. 0:17:57.760 --> 0:17:59.760 Well, if they're compelled to, they don't have a choice. 0:17:59.560 --> 0:18:01.200 They have to be. They can be gimpelled to. I 0:18:01.280 --> 0:18:03.080 guess okay, so they're not going to say that this 0:18:03.200 --> 0:18:06.199 is like secret service stuff. You know, you can't have 0:18:06.240 --> 0:18:06.520 this shit. 0:18:06.680 --> 0:18:09.719 No, it may be the case, for example, that Ben's 0:18:09.760 --> 0:18:13.000 defense team subpoena is it, and they may resist the subpoena, 0:18:13.080 --> 0:18:16.320 meaning they don't want to produce it. But ultimately it's 0:18:16.400 --> 0:18:18.520 up to the prosecution to make sure they have enough evidence. 0:18:18.760 --> 0:18:21.640 They're the ones who have the responsibility. And if they 0:18:21.640 --> 0:18:23.760 say no, you're going to give us the documents, they'll 0:18:23.800 --> 0:18:26.080 be given the documents, right, But that doesn't mean that 0:18:26.080 --> 0:18:27.600 the public is going to see the documents. 0:18:28.480 --> 0:18:30.879 So there'll be gag order or on that's right, so 0:18:30.920 --> 0:18:31.640 to speak. 0:18:31.720 --> 0:18:33.879 Non publication orders, and then there will be periods of 0:18:33.920 --> 0:18:36.639 time I'm willing to bet where there's a closed court, 0:18:36.760 --> 0:18:38.960 so jury will still hear it, but it won't be 0:18:38.960 --> 0:18:39.800 able to be reported on. 0:18:40.160 --> 0:18:43.679 So the obtaining of evidence is clearly going to be 0:18:44.160 --> 0:18:47.240 an issue just by virtue of distance in time. Let's 0:18:47.280 --> 0:18:50.639 just talk about the burden proof and so it's not 0:18:50.760 --> 0:18:55.000 a gimme that because he lost in the court system 0:18:55.040 --> 0:18:57.200 in the civil case that is where he is trying 0:18:57.240 --> 0:19:01.560 to sue someone for defamation, and the defamation claim is 0:19:01.760 --> 0:19:04.000 you said that I committed a war crime and I didn't. 0:19:05.160 --> 0:19:07.080 He lost that case, okay, and that went all the 0:19:07.080 --> 0:19:12.000 way up. But that's based on the balance of probabilities. Basically, 0:19:12.040 --> 0:19:15.080 they said, well, the evidence that you've presented to us, 0:19:16.240 --> 0:19:19.679 the judge says, on balance indicates to us that you 0:19:19.680 --> 0:19:23.680 probably did commit the crime. Therefore you haven't been defamed. 0:19:23.920 --> 0:19:26.080 Yeah, of course, And this is a really common point 0:19:26.080 --> 0:19:28.880 of confusion and something I've been asked a lot when 0:19:28.880 --> 0:19:31.239