1 00:00:00,800 --> 00:00:04,800 S1: Australias most decorated living soldier spent the night behind bars 2 00:00:04,800 --> 00:00:08,920 S1: last night. Because we're talking about Ben Roberts-Smith, who was arrested, 3 00:00:08,920 --> 00:00:12,960 S1: I thought in very sensational circumstances yesterday whether it needed 4 00:00:12,960 --> 00:00:15,239 S1: to be done like that last time, Percy Casey in 5 00:00:15,240 --> 00:00:18,000 S1: a moment. But he has been charged with five war 6 00:00:18,000 --> 00:00:20,720 S1: crime murders in Afghanistan. So many questions. How will it 7 00:00:20,720 --> 00:00:23,040 S1: be tried? Uh, how do you do it when you've 8 00:00:23,040 --> 00:00:25,360 S1: got no victims or you don't really have the evidence? 9 00:00:25,360 --> 00:00:27,800 S1: And it's from such a long time ago. Uh, this 10 00:00:27,800 --> 00:00:31,160 S1: has been collected by an organisation specifically set up to 11 00:00:31,200 --> 00:00:34,800 S1: look at activities. Tom Percy Casey not only is a 12 00:00:34,800 --> 00:00:38,960 S1: leading Casey King's counsel, but he's also served time as 13 00:00:38,960 --> 00:00:41,720 S1: the Army Reserve Legal Corps. And he joins us right now. 14 00:00:41,720 --> 00:00:42,600 S1: Good morning Tom. 15 00:00:43,720 --> 00:00:44,879 S2: Good morning Steven. How are you? 16 00:00:44,920 --> 00:00:46,680 S1: Not too bad. I mean, this is a case that 17 00:00:46,680 --> 00:00:48,880 S1: I'm sure a lot of people, particularly in Western Australia, 18 00:00:48,880 --> 00:00:51,280 S1: will sit up and take notice because a lot of 19 00:00:51,280 --> 00:00:54,680 S1: people are connected with this particular unit that Ben Roberts-Smith 20 00:00:54,680 --> 00:00:55,800 S1: was involved with. 21 00:00:56,880 --> 00:00:59,480 S2: Well, he's also a West Australian himself, and his father 22 00:00:59,480 --> 00:01:03,480 S2: was a West Australian Supreme Court judge. He's got family here. So, uh, 23 00:01:03,800 --> 00:01:05,759 S2: I'm sure everyone will take a bit of interest in it. 24 00:01:05,800 --> 00:01:07,720 S1: How does it work, Tom? I mean, as far as 25 00:01:07,720 --> 00:01:11,000 S1: the federal court versus the state court, where will the 26 00:01:11,000 --> 00:01:13,360 S1: trial be held and why did he have to be 27 00:01:13,360 --> 00:01:15,760 S1: arrested the way that he was arrested yesterday? Was he 28 00:01:15,760 --> 00:01:16,600 S1: a flight risk? 29 00:01:17,920 --> 00:01:21,920 S2: Look, uh, a couple of questions there. Firstly, will be, 30 00:01:21,920 --> 00:01:25,520 S2: I would think, in the Supreme Court of New South Wales. Uh, 31 00:01:25,520 --> 00:01:28,479 S2: the federal court was where the defamation case was, but 32 00:01:28,480 --> 00:01:32,080 S2: that's a completely irrelevant thing to what he's now charged with. 33 00:01:32,080 --> 00:01:35,240 S2: So be charged over there. I think it'll probably take, uh, 34 00:01:35,240 --> 00:01:38,640 S2: best part of two or up to three years before 35 00:01:38,640 --> 00:01:42,520 S2: he goes to trial. It's incredibly complex case and, uh, 36 00:01:42,640 --> 00:01:44,840 S2: to marshal it and get it together and all the 37 00:01:44,840 --> 00:01:48,120 S2: preliminary skirmishes that are involved in a case like that 38 00:01:48,320 --> 00:01:50,880 S2: will take a long time. There's a similar case going 39 00:01:50,880 --> 00:01:53,600 S2: through at the moment in New South Wales war crimes 40 00:01:53,600 --> 00:01:59,320 S2: case against another ex-soldier, and that's listed for trial, uh, 41 00:01:59,320 --> 00:02:02,640 S2: in February next year, I think, or even longer away 42 00:02:02,640 --> 00:02:04,720 S2: than that. So and that's been the pipeline for the 43 00:02:04,720 --> 00:02:08,269 S2: best part of two years. So if, uh, if you're 44 00:02:08,270 --> 00:02:11,030 S2: sick of this story, uh, get used to it because 45 00:02:11,030 --> 00:02:12,590 S2: it's going to be around for about three years. 46 00:02:12,630 --> 00:02:15,389 S1: But you're talking 20 years ago. If it last, if 47 00:02:15,389 --> 00:02:17,870 S1: it takes three years to get to actual trial. Are 48 00:02:17,870 --> 00:02:20,470 S1: you talking these events happened 20 years ago. Does that 49 00:02:20,470 --> 00:02:23,270 S1: make any difference as far as being able to recall 50 00:02:23,270 --> 00:02:25,190 S1: evidence and all the stuff that goes with it? 51 00:02:25,990 --> 00:02:28,190 S2: Well, it puts you at an enormous disadvantage. But I mean, 52 00:02:28,190 --> 00:02:30,549 S2: I think we saw a murder trial in the West 53 00:02:30,590 --> 00:02:33,430 S2: Australian Supreme Court here a couple of weeks ago, where 54 00:02:33,430 --> 00:02:35,830 S2: the events are supposed to have happened 40 years ago. 55 00:02:36,190 --> 00:02:40,030 S2: I've done sexual assault trials where the events happened 60 56 00:02:40,030 --> 00:02:43,430 S2: years ago. So even though an accused person is an 57 00:02:43,430 --> 00:02:46,470 S2: enormous disadvantage, they run on with these things because there's 58 00:02:46,470 --> 00:02:47,910 S2: no statute of limitations. 59 00:02:48,190 --> 00:02:51,750 S1: So Ben Roberts-Smith has denied all charges, and I gather 60 00:02:51,790 --> 00:02:54,510 S1: that he will get bail eventually. Why was the delay 61 00:02:54,510 --> 00:02:55,709 S1: in bail last night? 62 00:02:57,230 --> 00:03:01,829 S2: Well, I think he was, uh, firstly, the police have, uh, 63 00:03:01,830 --> 00:03:04,670 S2: the power to grant you bail in limited circumstances. I 64 00:03:04,669 --> 00:03:07,030 S2: think if it carries life imprisonment, they'd be reluctant to 65 00:03:07,030 --> 00:03:09,070 S2: do that. But they can go in front of a 66 00:03:09,110 --> 00:03:11,109 S2: magistrate or a judge, which it did as a matter 67 00:03:11,110 --> 00:03:14,030 S2: of course, this morning. But if you were his lawyer, 68 00:03:14,030 --> 00:03:17,070 S2: you would probably be thinking, this needs to be carefully 69 00:03:17,070 --> 00:03:19,110 S2: thought out. We need to put a lot of paperwork, 70 00:03:19,750 --> 00:03:23,230 S2: security arrangements and things like that together. I don't think 71 00:03:23,550 --> 00:03:26,190 S2: that that was able to be done this morning, so 72 00:03:26,230 --> 00:03:28,390 S2: I would think they'd probably get it on within the week. 73 00:03:28,750 --> 00:03:31,829 S2: I was expecting him to be getting bail now. Um, 74 00:03:32,150 --> 00:03:35,870 S2: the other chap who's going through the same situation, uh, 75 00:03:36,030 --> 00:03:38,350 S2: at the moment, he does have bail. He's allowed to 76 00:03:38,350 --> 00:03:42,030 S2: travel around Australia in certain circumstances, so I wouldn't have 77 00:03:42,030 --> 00:03:44,070 S2: thought there's any risk. Ben's going to get bail. 78 00:03:44,230 --> 00:03:47,150 S1: So take us into a theatre of war. Like these 79 00:03:47,150 --> 00:03:51,630 S1: charges relate to events in Afghanistan. A totally different scenario 80 00:03:51,630 --> 00:03:55,350 S1: to say living in a quiet place like Perth. I mean, 81 00:03:55,390 --> 00:03:58,870 S1: does that cut any slack? The fact that he or 82 00:03:58,870 --> 00:04:01,790 S1: whatever happened was in a theatre of war? 83 00:04:03,150 --> 00:04:07,390 S2: Well, enormously different. Uh, you would think that, uh, a 84 00:04:07,470 --> 00:04:09,670 S2: jury's going to have to take that into account as 85 00:04:09,670 --> 00:04:12,790 S2: one of the, one of the factors, uh, that they 86 00:04:12,790 --> 00:04:16,669 S2: will consider. And, uh, you know, I think the prosecution 87 00:04:16,710 --> 00:04:21,029 S2: have got an uphill battle here. They really, uh, are 88 00:04:21,070 --> 00:04:23,150 S2: looking at a case where no one can go to 89 00:04:23,150 --> 00:04:25,350 S2: the crime scene. They haven't been able to investigate the 90 00:04:25,350 --> 00:04:28,150 S2: crime scene because they can't go there. Uh, they've got 91 00:04:28,150 --> 00:04:31,789 S2: no bullets, no weapons, no evidence, physical evidence. They've got 92 00:04:31,790 --> 00:04:35,790 S2: the say so of a few other witnesses who supposedly 93 00:04:35,830 --> 00:04:38,550 S2: were there. But in terms of what you'd expect in 94 00:04:38,550 --> 00:04:42,830 S2: your ordinary murder trial, which happened on Australian soil, then, uh, 95 00:04:43,310 --> 00:04:45,830 S2: you know, they really are behind the eight ball here. 96 00:04:45,830 --> 00:04:48,150 S2: And I would think that they've they've they've got some 97 00:04:48,150 --> 00:04:50,270 S2: work to do before they convict this man because. 98 00:04:50,310 --> 00:04:52,790 S3: Tom, how much more can they do? Because they've obviously 99 00:04:52,790 --> 00:04:55,830 S3: had to get a certain amount of evidence or hearsay 100 00:04:55,870 --> 00:04:57,790 S3: to get to this point. So as you said, they 101 00:04:57,790 --> 00:04:59,630 S3: can't go back. There's nothing more they can do. So 102 00:04:59,630 --> 00:05:01,270 S3: what what more can they do? 103 00:05:02,270 --> 00:05:05,029 S2: Well, I think they probably had all their ducks in line, Mick, 104 00:05:05,029 --> 00:05:07,670 S2: when they ran the defamation case, when they defended the 105 00:05:07,670 --> 00:05:11,190 S2: defamation case, their defence was they had to prove effectively 106 00:05:11,190 --> 00:05:14,350 S2: that he murdered these people because they'd gone public with it. 107 00:05:14,350 --> 00:05:16,820 S2: And if you if you're going to do that and 108 00:05:16,820 --> 00:05:18,940 S2: it's not defamatory, you're going to prove that's true. And 109 00:05:18,940 --> 00:05:22,020 S2: they they did to the satisfaction of a judge, uh, 110 00:05:22,020 --> 00:05:24,980 S2: a single judge sitting alone in a case where the 111 00:05:24,980 --> 00:05:28,340 S2: standard of proof is the balance of probabilities. Now they'll 112 00:05:28,339 --> 00:05:30,780 S2: have to satisfy a jury because in Sydney, they don't 113 00:05:30,779 --> 00:05:33,380 S2: have the right to trial by judge alone. Like people 114 00:05:33,380 --> 00:05:36,300 S2: here do have that option. If you can convince a 115 00:05:36,300 --> 00:05:39,700 S2: court that it's an appropriate case like Lloyd Rayney, etc., 116 00:05:40,060 --> 00:05:45,299 S2: those sorts of people. Uh, Bradley Edwards, the Claremont serial allegations. Uh, 117 00:05:45,540 --> 00:05:48,100 S2: so he will have to go before a jury and 118 00:05:48,100 --> 00:05:50,060 S2: they will have to prove their case beyond reasonable doubt, 119 00:05:50,060 --> 00:05:52,540 S2: which is a very, very different kettle of fish than 120 00:05:52,540 --> 00:05:54,060 S2: what happened in the federal court. 121 00:05:54,500 --> 00:05:57,500 S3: Because how much role will emotion play with that with 122 00:05:57,500 --> 00:05:58,060 S3: the jury? 123 00:05:59,300 --> 00:06:01,580 S2: Well, you know, juries have always told that they can't 124 00:06:01,580 --> 00:06:03,820 S2: be emotive about these sorts of things and that they 125 00:06:03,820 --> 00:06:07,339 S2: have to deal with it on the evidence and emotion 126 00:06:07,339 --> 00:06:09,099 S2: has no part to play in a case like that. 127 00:06:09,100 --> 00:06:13,380 S2: But that's easier said than done, obviously. And, uh, you know, 128 00:06:13,420 --> 00:06:15,700 S2: I think, uh, there's a lot of people out there 129 00:06:15,700 --> 00:06:18,540 S2: who probably think soldiers do a very good job and 130 00:06:18,540 --> 00:06:21,700 S2: that the rules have to be more flexible in law. 131 00:06:22,020 --> 00:06:25,659 S2: When you're talking about a war. So, you know, I 132 00:06:25,660 --> 00:06:28,700 S2: think that, uh, the prosecution will be up against that. 133 00:06:28,700 --> 00:06:30,700 S2: And I think Ben's got a few things going in 134 00:06:30,700 --> 00:06:32,460 S2: his favor as he goes to stand trial. 135 00:06:32,779 --> 00:06:35,140 S3: And in terms of like jury selection, obviously going to 136 00:06:35,140 --> 00:06:38,780 S3: be important. How what sort of person are they going 137 00:06:38,779 --> 00:06:39,580 S3: to be looking for? 138 00:06:40,900 --> 00:06:43,700 S2: Well, you don't look for anyone. There's 12 names coming 139 00:06:43,700 --> 00:06:45,500 S2: out of the hat. You can object to three of 140 00:06:45,500 --> 00:06:49,340 S2: them in Western Australia. Um, I mean, the person has 141 00:06:49,339 --> 00:06:54,020 S2: a predilection bias one way or the another. Then they can, uh, 142 00:06:54,060 --> 00:06:55,979 S2: they can make that known to the judge and ask 143 00:06:55,980 --> 00:06:58,419 S2: to be excused. But it's not like America where you 144 00:06:58,420 --> 00:07:01,099 S2: get to cross-examine potential jurors. Ask if they have any 145 00:07:01,100 --> 00:07:03,940 S2: thoughts about the matter, whether they've got any, uh, whether 146 00:07:03,940 --> 00:07:09,220 S2: they've got any, um, sympathies or prejudice one way or another. And, uh, 147 00:07:09,260 --> 00:07:11,300 S2: that's the way that they do it. But here you 148 00:07:11,340 --> 00:07:13,100 S2: have no chat. What, what comes out of the hats, 149 00:07:13,140 --> 00:07:13,620 S2: what he gets. 150 00:07:13,660 --> 00:07:14,700 S3: That's it. Mhm. 151 00:07:14,980 --> 00:07:17,660 S1: All right. Tom, thank you for your expertise. Have a 152 00:07:17,660 --> 00:07:18,140 S1: good day. 153 00:07:19,100 --> 00:07:19,980 S2: Okay. Thanks, Steve. 154 00:07:20,140 --> 00:07:23,530 S1: John. Percy Casey. He's not without his supporters. And I 155 00:07:23,530 --> 00:07:27,210 S1: repeat that Ben Roberts-Smith has denied any wrongdoing and will 156 00:07:27,210 --> 00:07:30,130 S1: fight the charges. But he's got some pretty powerful people 157 00:07:30,130 --> 00:07:33,290 S1: that are getting right behind him. Absolutely. Including Gina Rinehart, 158 00:07:33,410 --> 00:07:35,570 S1: who basically said, I don't understand how it can be 159 00:07:35,570 --> 00:07:39,010 S1: justified to spend more than $300 million to try for 160 00:07:39,010 --> 00:07:42,370 S1: years to bring down SAS veterans. Surely the more than 161 00:07:42,370 --> 00:07:45,370 S1: $300 million of taxpayers money would have been far better 162 00:07:45,370 --> 00:07:49,290 S1: spent strengthening Australia's security and keeping Australians safe from terrorism? 163 00:07:49,290 --> 00:07:51,810 S3: And Tony Abbott, he came out yesterday again in support. 164 00:07:51,810 --> 00:07:53,650 S3: So there's a lot of high profile people behind him. 165 00:07:53,650 --> 00:07:56,130 S3: So that's what it's going to be a fascinating, um 166 00:07:56,170 --> 00:07:58,530 S3: build up to it. And when you talk about the 167 00:07:59,090 --> 00:08:01,490 S3: like the jury, surely they're going to be influenced when 168 00:08:01,490 --> 00:08:05,370 S3: you hear these people supporting. Uh, yeah, it's, it's a 169 00:08:05,370 --> 00:08:07,330 S3: tough one. That's a tough one. I don't know how 170 00:08:07,450 --> 00:08:08,130 S3: I'm going to work out. 171 00:08:08,130 --> 00:08:10,610 S1: You know what? If people have done things they shouldn't 172 00:08:10,610 --> 00:08:13,290 S1: have done, they should be accountable. But I think the 173 00:08:13,290 --> 00:08:15,890 S1: difference here is the fact that it's in a different 174 00:08:15,890 --> 00:08:18,010 S1: part of the world a long time ago. And does 175 00:08:18,010 --> 00:08:20,650 S1: that excuse bad behavior? I don't know, anyway, it will 176 00:08:20,650 --> 00:08:22,490 S1: all be tested in a court of law and we'll 177 00:08:22,490 --> 00:08:24,290 S1: follow it with interest, as Tom says.