Ben Roberts-Smith

[facthunter]

 NO I'd be breaking my own rules it I did. and (THAT is NOT a Cop Out).    You under-rate the Judges responsibility. Public comment can Make a Fair trial Unlikely,  The Trial is happening Now. Nev

[Grumpy Old Nasho]

Ben is done for if there are any Afghans or muslims on the jury. 

[octave]

1 minute ago, Grumpy Old Nasho said:

Ben is done for if there are any Afghans or muslims on the jury. 

I wouldn't worry about that.   Here is the jury selection process (at least in NSW)  If the defence believes an Afghan (f one happened to be selected) would be prejudiced to the defence, they can challenge, as can the prosecution.

 

The Jury Selection Process:

• Selection: The Sheriff randomly selects people from the NSW electoral roll within a court's district.
• Notice and Summons: Residents receive a notice of inclusion for a 12-month period, followed by a summons to attend court on a specific date.
• Eligibility: Most people registered to vote are eligible, though some criminal convictions, legal disqualifications, or occupations (e.g., police) may exclude them.
• Exemption: Individuals can request to be excused for reasons like health, undue hardship, or prior service.
• Empanelling (The Ballot): At court, the Judge's Associate randomly draws cards from a ballot box to select 12 jurors for a trial.
• Challenges: The defense and crown can each challenge (object to) up to three potential jurors without giving a reason. 

[Jerry_Atrick]

@Grumpy Old Nasho - you really need to stay away from TV.. It is mainly American fed BS that doesn't even apply in their legal systems. 

 

War crimes are covered under the Crimes Act (Commonwwealth), making it a federal office; not a state offence. It is an indictable (serious) offence. However, there is no federal criminal court, the court of the first instance will be the supreme court of whichever state he is in, which is NSW. 

 

Under NSW law, all indictable offences require a trial by jury, except where, in the court's opinion, there is so much publicity that would impact almost anyone from being unbiased and potentially predisposed to a guilty verdict. But, this does not apply to federal offences thanks to s.80 (I think) of the Aussie constitrution, that requires all commonwealth (fedral) indictable offences to be tried by jury.

 

The Bondi gunmen are also to be tried in the NSW Supreme Court in the first instance. 

 

In both cased, the defence may (and will likely) petition the court that a trial by jury would be prejudicial to the defence. If both succeed, then the outcome will be different for both defendants. Roberts-Smith will walk free. As the court will deem he cannot be granted a fair trial by jury, and the Aussie constitution requires those charged with a federal indictable offence are tied by jury, the court has no choice. It's as simple as that. Of course, the prosecution will appeal it, but if the decision is upheld, Robert Smith is a free man.

 

In the case of the Bondi Gunman, there are 59 offences including murder, attempted murder, terrorism, firearms, etc. For the NSW state offences (murder, attempted murder , some of the firearms offences, some of the terrorism offences), he will still be tried - but by a judge only or a number of judges. He does not automatically walk free. If the defence do not agree, he will still be tried by jury. Unlike Roberts-Smith, he has no "get out of jail" card, if you will excuse the pun. 

 

But there's more.. the procedure is slightly different, especially where the judge has to give reasons for finding of fact (where a jury doesn't), It is hard to quantify, but because it holds the judge to a higher level of scrutiny, is is argued tha ut us harder to get a convuiction because they judge requires more to eliminate reasonable doubt (standard of proof the prosecution must provide) and less to introduce doubt on the balance of probabilities (standard of proof required by the defence). 

 

Every new editor (TV, magazine, radio, etc) in the country knows this. 

 

So, your theory that all the hype with Roberts Smith and the relatively low coverage of the Bondi Gunman is to lynch Roberts-Smith is so far from reality, it beggars belief. It is in Roberts-Smith best interests that there is as much bombastic coverage showing him as guilty as possible. With every press story that can predispose people to an opinion, the defence case stengthens that he can walk away a free man. 

 

Similarly for the Bondi Gunman, as if the defence will have less to do to introduce reasonable doubt (not that that will happen) or intorduce a defence (e.g. mental impairment - still slim but probably he only one he has got form what I saw as provication has to be proximate). By the press not covering it obsessively, they are prroviding less than they could to the defence to give them their best short at walking away. 

 

But, if you want to reverse the situation and have all the coverage on the Bondi person and none or less on Roberts-Smith, then you are virtually guaranteeing he will be tried, and possibly allowing enough of a sliver of hope the Bonid gunman can rely of some defence (though I doubt it, because criminal mental impariment is a much narrower definition than clincial definitions). 

 

 

[old man emu]

Perhaps the reason that teh Bondi Gunman has slipped from the front page is due to a lot of other stuff for the front pages. Things like Iran, fuel, cyclones, and Roberts-Smith are the short term attention grabbers now. Also the Bondi Bomber is awaitng the actual start of the Court appearances. He is currently On Remand.

[facthunter]

Haven't bought any Papers since 1973. You Get VIEWs, not News.  Why pay to be subject to Blatant Propaganda.? . Nev

[Grumpy Old Nasho]

On 11/04/2026 at 11:36 AM, old man emu said:

The judge is simply there to see that the game is played by the rules.

Not necessarily, I've seen in a news report, a judge sentence a muslim father to only a token 3 years jail for stabbing a bloke to death, and he said" "The Public won't understand this sentence". He imposed it for cultural reasons. In other words, in Islam, it's ok to kill someone who brings dishonor on the family. Actually it was the father's daughter's non-muslim boyfriend who was murdered, just south of Sydney.

 

 

[old man emu]

13 minutes ago, Grumpy Old Nasho said:

Not necessarily

 

GON, I was talking about the conduct of the trial - the presentation of evidence to prove the allegation, or the rebuttal to disprove it. Also the judge can rule on the admissability of evidence. These things take place before the jury has made its decision. Once it has, the jurors are dismissed and play no further part in the trial.

 

Thereafter comes the sentencing process if the accused has been found guilty. The judge has a number of sentencing options which can be used, ranging from no penalty to the maximum prescribed by the particular law. There are other intermediate sentences, usually called diversionary sentences which aim at rehabilitation.

[red750]

Ben Roberts-Smith has been granted bail by Local Court Judge Greg Grogin in Sydney after being charged with five counts of war crime murder.  The 47-year-old former SAS corporal was released from Silverwater Correctional Complex on Friday, April 17, 2026, following a hearing where the court acknowledged the exceptional circumstances of the case, noting that the trial could take years to resolve. 

Bail conditions imposed on Roberts-Smith include:

 

Forfeiting his passport and reporting to police three times a week. 
Granting authorities access to his electronic devices. 

A strict travel restriction preventing him from leaving Queensland except for legal or medical reasons.

A $250,000 bond (surety) provided by his father, former judge Len Roberts-Smith, which would be forfeited if conditions are breached. 

The judge ruled that these stringent conditions would mitigate risks regarding flight or witness interference, despite opposition from Crown prosecutors who argued the charges were gravely serious and that there was evidence suggesting Roberts-Smith had attempted to move overseas.  While Roberts-Smith denies the allegations, the criminal case follows a 2023 defamation trial where a judge found the accusations of murder were substantially true. 

[old man emu]

One of the reasons for granting bail was that it is going to takwe a very long time to bring these charges before a court. There is no likelihood that he will commit further offences whilst free on bail, so community safety is not endangered. The only condition that I see as not being useful is the reporting three times per week to police. That is supposed to restrict his movement from the local area of his residence. As one who was able to set bail conditions, I always felt that this was an onerous condition. Once a week is sufficient if the condition is required.

[Jerry_Atrick]

On 17/04/2026 at 12:06 PM, old man emu said:

There is no likelihood that he will commit further offences whilst free on bail,

<pedant mode on> Well, and being totally pedantic, the chances are really remote <pedant mode off>

 

But, he would have to have the biggest brain fart on earth to do so. 

 

I think we should be really clear about this; there is a big difference between a civil finding of "guilt" and a criminal finding of "guilt". The civil finding only finds whether or not he is more likely to have committed it than not. That is it. That is not even half way to criminal liability, especially indictable offences, of which this is one. 

 

To summarise murder, of which by war crimes will likely be the same elements, if not more because of the fact it is opeating in the theater of war where you are expected to kill people, you require the following:

• Actus Reus (Physical element - the doing bit)
  • You need to have caused the killing
  • It has to be a voluntary act (or in limited cicumstances, a voluntary omission); i.e. it can't be accidential
  • There is no "novus actus interveniens" - no new intervening act. So, you may have done something to cause harm to someone, but even if it may have normally killed them, but some intervening act comes along which actually causes the death; that would absolve you of liability. So, for example, Roberts-Smith kicking the famer over the rock ledge, and if another soldier came along and "finished him off", unless it could be shown that Roberts-Smith was still a substantial and oeprating cause of that other soldier finishing him off, Roberts-Smith will likely be deemed not to have caused the death of that farmer. 
  • There are permutations and combinations to the above, of course. Forf example, setting off a chain of events that leads to the death, even if the act oneself started didn't directly lead to the death, will not avoid liability.
• Mens Rea (mental or guilt element): In NSW law, this is basically, where the defendent did have (or shown to must have had):
  • Intention to kill or commit grievous bodily harm;
  • reckless indifference to human life  (which is higher than negligent) to whether or not it would occur. Reckless is effectively no intention for an outcome, but very foreseeable and went ahead with it anyway. Negligent is more didn't figure in the defendents mind at all. 
  • Death occurred in the commission of another offence that is liable to a prison term of 25 years or more (constuctive murder)

The aboce has to be proven, beyond a reasonable doubt, that were all active at the time of the death. 

 

From what we have seen and read on the news - and remember that - it is not the evidence that is tended to a court, it would appear he would fit the bill. In terms of a war crime, which is his charge/s I understand, there may be additional hurdles the prosecution has to prove beyind a reasonable doubt. So, please bear that in mind. 

 

So, we move to defences, which only have to be proved to the balance of probaility. However, the burden of proof shifts to the defence. 

• Self defence: The defendent himself believed their actions were necessary to defend themsleves. In the context of a war crime charge, I have no idea what further tests would apply. From the farmer over the ledge killing, I would find it hard to justify self defence by pushing a bound person over a ledge as requiring self defence, especially of that importance.
• Necessity/Duress: This has been narrowed over the years. Duress requires immediate duress, for example, someone was hoilding a gun to Roberts-Smith head and tellking him to do it. There is an innocent-agent defence avaialble as well, but generally to people dependent on the one requesting them to do the dirty work. Necessity is to avoid immediate and serious danger (there is a European case that defines this - where a ferry from the UK to Holand I think sank, and the only way to a lifewboat was blocked by someone who panicked and foze, flocking the path; someine else literally threw him overboard In the end, no verdict was offered as the could not verify the person was killed as they could not find the body, but obiter was that it would be a necessity anyway - and this convenience was used to avoid applying other legal doctines  which would have likely rendered the person doing it but saving many lives as guilty). Given Roberts-Smith senirority and the fact he was reported to be operating under free will, neither necessity nor duress would apply. 
• Partial defences of extreme provocation, partial impairement, and extreme provocation are partial defences that would reduce liability and reduce a conviction to manslaughter. 

 

Notice, there is no defence of insanity. That is because, if insanity is proven (temporary or permanent), it negates thet mens rea, and therefore takes the mental element away, and therefore cannot be guilty of the crime. However, the court can, on the basis that the physical element is proved, have him still stay as a guest of his majesty's services - but a secure mental institution. Note, the law has chaned in NSW with respect insanity/impairment, and the above may well be out of date. 

Note, the criminal law is more about constraining the abuses of the state against individuals accused of crimes than it is about protecting the public - at least asserted by leading jurists and lawyers, including ex NSW and other state and federal attorneys-general. 

 

From the news we have seen and the defamation court case: He is likely, but not proven beyond reasonable doubt that he did the act/s. No other of the tests have yet meen met - physical or mental.  The press doesn't release all the evidence prior to a criminal trial - nor can they. 

 

Whether we think he is guilty or not is quite immaterial, I would suggest - as we are part of the court of public opinion.  But from what we have seen, I would suggest his defence is going to take a three-pronged approach:

• Try to assert that there is reasonable doubt he actually did it (unlikely they will take that approach) or the mental element was present at the time. If they can introduce enough doubt that he met the mental elements, he should be acquited.
• Introduce criminal insanity (although it is not named that in NSW, and the law recently changed, so that may only result in a partial defence). Note criminal insanity is a much higher bar than the equivalent clinincal diagnosis. 
• Assert he cannot be given a fair jury trial given the publicity and coverage; and that finding impartial jurors will less probable than probable. If this is a state charge, he would then be given a judge only trial; but as this is a federal charge and his right to be tried by a jury is constitutional, a successful argument of this will result in no trial (I forget the technical term), and although he will not be acquitted per se, so he can later face the charges under a jury trial, he will walk free. My guess is hhis defence will try and have the press rake up as much as possible to go for this approach as from what we have seen, this would have the best possible chance of him walking free. 

 

For the record, I think he should face justice. But I am also a legal positivist - meaning we abide by the rule of law even is sometimes the decisions are perverse. We can then reform the law as we understand its limitations. 

[facthunter]

It was about Bail conditions. Nev