James Glisten, Welcome to straight Talk mate. Thank you and as I really appreciate you coming on. I'm you're a practice manager of Glisten and associalist at Lawyers. You got two officers here in Sydney. You spent time I think as a police prosecutor for a.
While, yeah, and a police officer as well, and.
Police officer as well. Just gives a quick rundown of what your experience has been both as a police prosecutor. You know, what your law firm does is sort of work you do and why we're going to talk about Ben Roberts Smith in a moment. But where's the relevance between what you have learned, what you have seen, what you do relative to what we might be talking about in a relationship Ben Robert Smith.
So it's interesting, like the police still have that where you go and be a prosecutor, but you have to spend time on the beat first.
It's still the same.
Yeah, it's still the same. So it's called the Accelerated Prosecuting Recruitment Program And when I joined they didn't have it, it wasn't operating it is now. And with that program, you spent like one year on the street, whereas when I joined, because it didn't exist, it was three. So I went through and I went through the academy. I did that while I was finishing my law degree, which was a terrible decision. It was a lot of work
in a very short amount of time. And then I prosecuted after I'd finished all my beat policing, my straight policing in the city. So it was really interesting having that background because especially in a criminal context, because it's no longer theoretical or academic, right, because I've exercised the powers to arrest people, and I've seen the alleged victims of crime prior to a conviction, because it's all alleged. They're all complainants. They're not yet victims until it's proven.
But I've also seen how it affects people who are arrested and who are charged with things, and it's never ever black and white, it's never clean cut. And then that compounded when I went to prosecuting, because as a prosecutor, you represent, yes, the state and the police, but you're also there to get the evidence from the complainants. Sometimes they really don't want to come because they don't want to relive whatever happened to them, and that has its
own challenges. But you also see people who are self represented in comparison very minor things like traffic offenses, and they believe very strongly in their position, but they don't really know how to articulate it because there isn't a huge amount of education in this country at any level unless you go through a law degree at university to understand how it works and how court works. And it's very brave to do that, and I have a lot
of respect for people who do self represent. And then of course, coming to the defense side of things, you see it again and a different side of it once more of how it's affecting them personally while they're waiting for a hearing or a trial date. What the risks are. How somebody who has lived a fantastic life and been a very valuable member of the community for a long time can either make one mistake or a relapse in judgment and then their entire life can change forever with a criminal record.
And I can see how that sort of encourages people like you to stay in their career. But one of the things most people don't understand, and you will, and you've been on both sides of the legend. Now you've
been on the prosecution and the defense side. These days on the defense side, but maybe you'd be great for you to explain that it's not the police who decide to take the case, that it's the state at a state level at the police level, or if you're at a federal level, which is the commonwealth level, if it's a commonwealth crime, it's in the case of New South Wales, as the Director of Public Prosecutions in the federal at the federal level, let's see, probably the Attorney General or
something like that. Is that right? And those people are influenced by politicians too, the bureaucracy that sits above the DPP, the Director of Public Prosecutions and or the Attorney General at a Cornwuth level, they have an input because what happens is the cops arrest them. As I understand it, and tell me if I'm wrong, because it could have changed where the cops arrest the state crime might build up some resources around. The evidence gets handed over to
the Director probably Prosecutions. They look at it and go, well, we think we've got to win a here, or it's not worth spending the money on it, so minor we're not going to bother about it, or it's important politically important, or a minister might even get involved because it might be about importation of cigarettes or policy reasons. Yeah, therefore a politician gets involved because this has some relevance I
think to the Ben Robert Smith case. Oh, but you might explain how the decision for you as a prosecutor police prosecutor to take the case because you don't make the call, a cost benefit analysis has made and is sent up to the DPP.
Yeah, so it's very much driven by policy. I mean, at the beginning of the Crimes Act, whether that's the domestic violence one or the General State Act, it sets out the objectives and they're the guiding policy aspects. Right. So when you're talking about offenses that end up in the lower court, so the local court, and that's a lot offenses. It can even be quite serious because we've moved a lot of really serious offenses down a level
so that they can be dealt there quickly. That decision is dealt with by really the particular pack or the particular police station in charge of it, and they inform
themselves by way of policy. When you talk about the DPP or the matters that go to the higher courts, it's even more pronounced because there's definitely a policy aspect, and when you're talking about the decision to prosecute something, there's an overarching principle which is whether or not it's in the public interest to run the prosecution, and it's a very very broad test.
How to police bake that decision, Well, police generally don't. It does for that.
It would be like in the state it would be the DPP, and in federal crimes that would usually be the Attorney General. But I'm sure there's lots of advice being given there. Yeah, and that decision is you know, you've got to remember this is meant to be a very transparent system, but it's very difficult to get a clear answer on some of these things, which kind of
hurts the transparency asp. So when you talk about Ben Robert Smith, I mean, there's no doubt there's been a lot of division in this country everywhere in relation to how people feel about it. So you've got to really weigh that up as a factor when it comes to the public interest.
It's interesting because media gets behind it and they start to make the politicians feel a bit nervous, a bit uneasy.
I mean especially you know, it's unfortunate and I don't mean to jump on the Ben Robert Smith bandwagon, but it's such a magnificent spotlight in terms of the issues surrounding media.
And the process for me and the overall process. I don't mean just the prosecutor the decision to prosecute, but the media's role in this stuff and public opinion role in this stuff and the decision is what's in the public interest? If you step back, how do you think people make that call about public interest? Do they look at what public opinion is and make it and say, well, it looks for a lot of biler against this, a lot of people in favor of it. Yeah.
I think when it comes to this particular case, there's a big argument that can be made where you talk about our obligations when we sign up to treaties as a country. So when it comes to things like the International Criminal Court and all the treaties surrounding war and the way in which we can conduct ourselves. So on the one side, the argument may be that we have an obligation to show the world that we take this seriously, and it's not just lip service.
We're the politicians.
We're the politicians, that's exactly. And when I say we're generally speaking, that's what I'll be meaning. I certainly wouldn't speak for most Australians. Then on the flip side, you've got to look at not just how our reputation works internationally, but also how that affects us domestically as a country, because, as you said, it's caused a lot of division. It's become almost like a political chess piece. Everybody has a say on it, everybody wants to show their position on it.
Well, here we are today even doing it, and I would ordinarily have this sort of conversation. But yeah, exactly, I mean I got a view on it. But it's so because I didn't think of the international aspect of it, which is I'm glad you raise that and how we look internationally because we have those sorts of policies here
right now. The Paris Agreement, for example, the Paris Environmental Agreement that it was signed under a different government, by the way, but still the original signing of that signing up to that was how do we look globally in terms of our contribution to the global environment. And these are big, big policy decision which you and I as voters, we never have a chance. I haven't be saying because
it gets built, and then there are iterations. One selection's over and those iterations change can change the overall thing over time. They just could slowly chip away it. So on an international basis, at a Conworth level, the com Crimes Act, which is talking about war crimes, which is what Ben Robert Smith has been charged with. He hasn't been charged with murder. He's been charged with a war crime. Is that correct.
Yeah, I had a look at it last night. But there are five sequences. So there are five charges and some of them indicate direct involvement in an unlawful killing, a war environment. But what's interesting to me when I read through them is others refer to his sort of satellite involvement, so not directly being involved, but being around
it when it happened. Now, typically when you see offenses like that, there's more than one defendant because to make that out you have to show that it occurred in the first sort.
Of like a conspiracy or aiding a bedding or something very.
Much like that. Yeah, so it's interesting to see those charges appear where nobody else has been arrested and is about to be put on trial.
That's interesting because, by the way, a lot of the military who are now coming out and who are against the arrest or against the trial are actually saying that, like, where are the other people who involved, like particularly above Ben Rob Smith in terms of you know, like generals or the chain of command above him, Like someone's obviously told me to go towards some may have known about it, that didn't know about it, or quiesced in it, or
whatever the case. Because it took a long time. What is this ten years ago or something a long time. It's actually longer than ten it's twenty years, I think, yeah, very long. So this is called a war crime, actually called a war crime in the Common Crimes Act YEES.
So it's under the heading, it's under the subsection of war crimes.
Really there's a heading and.
Then there's heaps of them, so they list them and they seem to go on forever, right, But the way that it's been able to be brought is through something that a lot of people aren't aware of, which is what's called extra territorial jurisdiction or jurisdiction that applies in other countries but can be prosecuted here.
Because if I murdered someone in I don't know, South America when I was over there, the New souths government would be bringing a charge of murder against me here in Australia. Is that right? No, they wouldn't because it happened somewhere else, that's right. But in terms of this commonwealth crime under war crimes, they have this extra territorial
juristic jurisdiction because this happened in Afghanistan. So he wouldn't be able to get prosecuted by the New South Wales prosecutor for this crime.
Well, it wouldn't. It wouldn't be the appropriate jurisdiction because, like you said, it's a commonwealth it's a federal defense. It really belongs in the federal sphere as opposed to the state sphere.
But I don't know if anyone else has ever been prosecuted one of these things before under the Comonwealth Crimes Act wartime crime.
I don't know for war crimes, but breakham morand was yeah, okay, good point.
Like the crime was committed in the eighteen late eight in nineties in the Ball War. So this stuff's been around a long time.
Yeah, in different iterations and frameworks. But it's not a new concept, and it doesn't just apply to war crimes for example. So you look at the recent hate speech laws, which is the easiest way to describe them, even though they're far more reaching than just speech and some of those offenses when it comes to you know, what it is hate speech, how it's tested. They also have extra territorial jurisdiction. So if you do it overseas and it affects a group in Australia, then when you come back
you can still charge Wow. So and it's not new obviously. Child sex offenses is a big one. Yeah, Yeah, So there are clear instances where it's in the public interest because I think the public as a whole can get around prosecuting people who are accused of child sex offenses. But when you're looking at some of these other offenses, I think this power gets included, you know, hate speech, or with the Ben Roberts Smith case in particular, that starts to become a little bit more muddy because people
aren't really sure. The public isn't even really sure as to whether or not this is in the public interest.
Well, most of us wouldn't even understand it well enough to know whether those in my I don't know about the public interest. But if I look at it, is it in my interest? Right? Is it in the interest of Mike Boris r. The case against Ben Roberts fifth.
We haven't seen something like this brought under the War Crimes part of the Commonwealth Crimes Act for a long, long long time that I've ever certainly that nothing is popular, and the decision to make it would have been would have come via would have been a policy desiason just some extent based on how we look to our global allies or whatever in terms of how we conduct ourselves in war, or how we allow people in our military
to conduct themselves in war. They would have had had some impact on the decision making to actually proceed with this. I'm trying to give them excuses why it's taken twenty years.
Well, one of the big issues, of course, and it's very difficult to speak about this without speaking to the evidence, which for example, I'm not allowed to do. I can't comment on anything that might and we'll understand the irony in a little bit here, But I can't comment about anything that might prejudice his case.
And then you should explain because you're an officer of the court, right.
But when you're looking at war crimes and they've happened, you know, we've got the time aspect over twenty years, we've got the distance aspect how far away it was. Difficulties in attending the scene of the alleged crime. Difficulty is in obtaining witness statements and evidence. It starts to really become a weighing up of yes, justice needs to be seen to be done, so it needs to be
something that has perhaps tried irrespective of the outcome. But if it falls over terribly, and I'm not saying that it will, but if it falls over terribly because there simply isn't enough rock hard evidence to support the allegations, that's not in the public interest because that's not really going to put a lot of faith in the system
at all. And then people who are skeptical that this was a political move will be you know, I guess in some ways validated by it, and they say, well, look, they didn't even have enough evidence in the first place.
This is very interesting because as risky, very risky, so who ultimately is bearing this risk though, I mean, like, who's the person someone must be have sat there and said, okay, all those things someone's coming and said, look, minister, or look a head of the AFP or whoever you are. Look. On one hand, justice must be seen to be done. Allies or people who fight us in war will fight
with us in war. I want to know what type of country we are in terms of the military we send, in terms of the values of the morals or those individuals. Do we fit within the conventions of how we conduct ourselves in war? And they're conventions we've signed up to. On one hand, but on the other hand, the gathering of evidence is going to be compromised to a large extent. Therefore we could lose, which will make it look like it was a witch hunt, in which case we've got
a lot to lose. So someone has to sit there and go well on one hand and on the other hand that I mean, you've been involved at a state level, which is as I said earlier. Could be the police minister, it could be the DPP. But what do you think of some of the things that they were looking at in terms of this weighing up to decide to go with it as opposed to and are relicious not do it.
So when I was prosecuting, I always tried very hard to make sure that my job was simple, which was not to secure or a conviction, and it was not to get a particular kind of punishment. It was just to put all of the evidence that should be admitted, judge should see, should see, and keep the stuff that
shouldn't be out, and then make submissions. So if you sort of use that as the guiding principle of a prosecution, the decision that should have been made, the basis that really should have underpinned this entire decision when it comes to Ben Robert Smith, is is there enough evidence that we are comfortable, almost certain that can be admitted to bring the prosecution.
Which would be otherwise known as a primer facy case. That's exactly what it would be now, Yeah, but in your world, But which is a lot of times, is you know what happens in the state at a state level that gets looked at by a judge early on, and you know they decide whether they're going to proceed or not going to proceed with the case. Is that something that happens at the Conwawth level. Is that a
thing at a common Crimes Act? I mean, does it look that get looked at by some lower cord or whatever to make their decision.
Well, often these things they almost always start in the lower court. So even Ben's case at the moment is technically going to start in the local court, right, the New South Wales local Court when it comes to bail. Right, And there are a number of really technical and generally confusing ways in which the courts share jurisdiction for a little bit before it gets palmed off to one or
the other. Right, right, But when we're looking at how this has looked at and who looks at it, there is a real issue here which is and I don't think that this is going to be controversial. We're talking about the SASA, right, We're talking about a very serious organization with very serious jobs and a lot of that material, how they operate, who they are, things that were done, records they're not going to be released to the public because could.
You explain that? So, I mean apart from the public and not getting those things admissible in the court, I mean, can they lead laws around this? Says no, we're not. We're the military, don it. We're not going to give you that information.
Well, if they're compelled to, they don't have a choice.
They have to be. They can be gimpelled to. I guess okay, so they're not going to say that this is like secret service stuff. You know, you can't have this shit.
No, it may be the case, for example, that Ben's defense team subpoena is it, and they may resist the subpoena, meaning they don't want to produce it. But ultimately it's up to the prosecution to make sure they have enough evidence. They're the ones who have the responsibility. And if they say no, you're going to give us the documents, they'll be given the documents, right, But that doesn't mean that the public is going to see the documents.
So there'll be gag order or on that's right, so to speak.
Non publication orders, and then there will be periods of time I'm willing to bet where there's a closed court, so jury will still hear it, but it won't be able to be reported on.
So the obtaining of evidence is clearly going to be an issue just by virtue of distance in time. Let's just talk about the burden proof and so it's not a gimme that because he lost in the court system in the civil case that is where he is trying to sue someone for defamation, and the defamation claim is you said that I committed a war crime and I didn't. He lost that case, okay, and that went all the
way up. But that's based on the balance of probabilities. Basically, they said, well, the evidence that you've presented to us, the judge says, on balance indicates to us that you probably did commit the crime. Therefore you haven't been defamed.
Yeah, of course, And this is a really common point of confusion and something I've been asked a lot when you're looking at the civil case, especially because it's a defamation case, which are notoriously risky for run because the defense is that people were telling the truth. So it's it's always a it's a gamble as to whether it's worth it. In Ben's case it wasn't. And now we've got this compounding issue. So in the civil case, it's balance of probabilities.
What does that mean is like fifty No, it's just.
It's it's more vague than that. So it's it's not a mathematical equation. It's just to the fact finder. So to the judge, is it more like than not that the allegation was true?
Right? So it's the bet truth.
Yeah, And I think you can even expand it a little bit further which might help understand what this really means, which is each fact. So each allegation is put forward on its own, and then the court has to do the same balancing exercise for each fact. But that's very different to what we're dealing with.
Now, how's it look now?
Yeah, so it's almost the opposite of the first trial, if you want to look at it that way. So now the burden of proof, the people who have to prove something are the prosecution yep, and the prosecution alone, and that's the police. Well that's an AFP, that's right. Yeah, So so Ben doesn't have to prove anything. The police have to prove it. And then when you're looking at the standard so in.
The standard proof as a burd proof and in but no, no, I forgot the words. I should have remembered that I forgot.
The standard of proof in the civil matter, as we said, is like a balancing act. This is not a balancing act. This has to be beyond a reasonable doubt, and the courts have been very careful to not read too much into what that phrase means. Now, it's the highest test that we have in our system in terms of what you're required to do. It to prove something. But if you break the words down it, it kind of brings light to it by itself. If there is a reasonable doubt, then you can't find them guilty.
In other words, I'm in the jury or I'm a judge. I'm in the jury. It's reasonable that I doubt the evidence as to the crime that the prosecution has been presented. Therefore I can't convict him. Must equit not, I must acquit not guilty. So what is reasonable doubt?
I know you're going to ask that question.
What are the guidelines around it? The guideline I would a judge be saying to the.
Jury, Yeah, okay, So that's a great question. So when we're talking about these things, it's not necessarily left up to the jury to interpret it themselves. No, the judge will give them directions as to whether or not, or rather how to apply the test. When it comes to issues of law, it's up to the jury to decide what happened and what didn't happen, But it's up to
the judge to make sure that the law's being complied with. Really, so, when you're looking at a reasonable doubt, the simplest, most easy way to understand it is if you have a thought in your mind just at the top of the juror you the juror if you have the tiniest little doubt in your mind, and it's possible that that doubt is true, then you must find them not guilty.
Wow.
And that extends so without going into a full legal lecture ye promised I wouldn't do when you have somebody who then brings their own case, because remember, Ben doesn't have to say anything. If he does, if he puts his own evidence on, it doesn't even come down to whether or not the jury believes what he says. So they might not believe what he says but think it might be true, at which point they must acquit.
They may not believe in it, may believe it either way, somewhere in between.
Yeah, And if they don't believe him at all and they don't think that what he's saying is even remotely.
Possible, so the judge will say yep, you must.
And then well, in this particular case where let's say Ben puts on his own evidence and the jury says, well, we don't believe you at all, what the judge will tell the jury is if you don't believe him, it doesn't matter, because the prosecution still must prove everything. Even if you don't agree with what.
Benn words, You've got to believe with the prosecutions.
That's exactly right.
Forget about what Ben said. Yep, well, not forget about it, but there's a greater standard required that the prosecution still must convince you, mister Duror, that the prosecution's case is correct and that he did have the intention of doing whatever the crime that he's supposed to have done. And we'll go back to that in the second.
And not even in a big sense, every particular aspect of that must be to the same standard. So it's a very steep climb.
So in the civil cases it was before a judge. In a commonwealth case is before a jury. Yes, maybe you can explain that deal.
Yes, So that's one of the few rights that where he's a stringians actually have, and they are few, and that is the right that you are entitled to a jury trial to be judged by members of your peers.
How many members in the jury is and how would his defense to make sure that those individuals haven't been tainted by the media.
That's the trick. I mean, if you're talking about this case in particular, I don't know if you can, because it's been so heavily publicized and it's been spoken about so much, and the first defamation trial was in the headlines forever, it felt like, so everybody's aware of it, and everybody knows that a court did, in a manner
of speaking, find that he did something. So it's really really important that people understand, and they will be told probably forever during the case of the trial by the judge that whatever was said in that first case does not find its way into this one. It has to start fresh. Now. They've done several studies with jurors and there's limitations and what you can and can't talk about. You can't actually ask them why they made a decision or how they made it, but you can ask how
they felt about the process. And the overarching theme is that people take it really seriously, really really seriously, and I think being a jury, yeah, being a jury. Yeah, it's a huge deal, even in less controversial cases. It's a huge deal because the fate of somebody's life is in your hands, and that's a weight that really carries. Now in the US, there are all sorts of fun, exciting, dramatic. I think their legal system is far more fun and dramatic.
I don't know if that makes it better. Probably not. But there are ways that you can impanel juries, and you can sort of cull lots of potential jurors, you can challenge, you can challenge, right, But here it's far more restricted, far more restrict.
So there will be twelve members of the jury eventually appointed. Maybe you can explain the process of the final decision, as do the twelve jurors would be how's it going to work?
Generally, it will come down to what the defense and the prosecution are willing to agree to when it comes to jurors and who they're going to use their veto on. It's one of those situations where it's really up to whoever is running the case to just trust their gut and their experience and make the right call.
Do they get to see your details? Do you get to see a profile? On them.
I mean, there are questions that can be asked. I think generally speaking we try to be very careful in revealing private information like that. But it's one of those situations where people will be very honest. For the most part. People will be very honest when they're asked questions and they'll answer them fairly.
So there's an opportunity to ask questions.
There is an opportunity to ask questions.
And those jurors for a commworth case, is it the same as like in the state case. You know you live in New South Wales, you're on a list, you know you've never heerd for a case. You just automatically, somehow I get this notice that you're required to turn up and unless you've got a good excuse, you know, get fined to something. Yeah, you're compelled.
And you weren't not. So even when you get called up for jury duty, you won't know what it's about, who it's for, anything like that until you turn up.
Right. So it's the people hoping they get on this case, for sure.
I bet there are yeah, And therein lies the problem right because it's become such a controversial issue, it's such a big deal. People want to be involved, and people have I mean, maybe not pre judged, but they've certainly come to their own moral conclusion about whether or not it's right, and that's a real risk. It's a real problem to get around it.
Jo's do you think is better that he is going to get tried by a jury as opposed to a single judge or more than a single judge, or is it better that he just have a single judge, which is probably what would happen if he was in New South Wales. So it has a different set of rules.
It does with the absolute greatest of respect when I say this, I have more faith in twelve independent minds deciding what happened and the facts of a case than one. Right, even though judges are very experienced, I think it is fairer as a system to have twelve people come to the conclusion.
Maybe not necessarily fairer, but mathematically probably more likely you get a chance of getting one person that has some reasonable doubt.
Well, I think I think it might be fair. And the reason I say that is if it's beyond a reasonable doubt, then that that's really high. And if you have one or two people, certainly more who think well, no, I do have a reasonable doubt. You haven't met the standard. You haven't met what is required as the prosecution.
It has to be beyond the reasonable doubt.
That's right.
And they don't say how far beyond is No, I don't know if reasonable doubt's here. They don't say beyond like just a little bit above. They don't say's right out here somewhere beyond just could be anywhere, could be just literally a millimeter above.
Yep, it could be one step over or three miles further.
But maybe if we just look at the law itself, that the legislation it self is legislation flawed in that it says we're going to judge this guy based by a jury of people probably never really experiencing this stuff that soldiers have experienced twenty years post the event, or however long it was. Is there a flaw in the legislation?
I mean, like, because if he went to a court martial, which he can't do because he's no longer in the army, but if he went to a court martial, he'd be getting judged by a panel of judges who have probably all been a war or at least know what's going on experienced you have experienced in the mindset, what does a reconciliation or how do does one reconcile being tried twenty years later by people who may well have never experienced what I've experienced, and they're now going to make
a decision about what I did on that day, at that moment, at that minute, based on all the things that are happening around me, and also based on the orders I had. Maybe I had.
Yep, and that is it's a very reasonable question. So when you're looking at that, though, there are two different processes occurring, and it's really important to draw a distinction between them. The first is a lot of that assumes that it happened right, and then that's whether or not it was reasonable in the circumstances. But that's really a matter more for sentence, where you determine, you know, are there factors that reduce the sentence or is it really extreme?
What the fact finders in this particular case need to do. What their job is is to determine whether or not it happened at all binary right. So in the US it can be quite different. And the reason I draw a lot of distinctions between US and the US is because we share a very similar foundation for the system, but we've grown in very different ways. So in the US the jury may have more of an influence in terms of penalty. It certainly does when it comes to
simple matters. Here, it's got nothing to do with the jury. They're just there to determine the facts, the truth of what happened. And in some ways it may even be more beneficial to have people who have no experience in the military, because they can't have their judgment clouded where they say, oh, well, I've seen that done before, so maybe it did happen. They really have to bring an
impartial mind to it. I mean, like it's such a unique context, it's such unique circumstances that it's near impossible to do and there are real practical difficulties with that.
So when you're talking about the court martial aspect, it's predominantly for disciplinary issues for current serving ADF But when you're talking about this, and even though it doesn't seem right, because sometimes the law is not all that logical, you have a situation where the offense is outside of the military jurisdiction, and so people who were drawn to the
jury are outside the military jurisdiction. So if you wanted to look at it as perhaps or if you wanted to frame it as a break or an issue with the way that the laws work, it would be how the jurisdiction is handled. So if people wanted that change. People have a great degree of influence over how the law works. I know people don't think they do. Often it's because they don't understand what they can do to
influence it. But that can change, and it can be pushed back into the military jurisdiction if it's allowed to.
How could it get put back in the military jurisdiction.
For the criminal offense aspect of things, Well, there are ways that we could sort of bridge the gap between military jurisdiction and federal jurisdiction. Now, it gets a bit tricky with offenses, right because often when you come to criminal offenses, you need what's called a Chapter three court, which is a constitutionally approved court, and that does have issues.
But because we are a system where Parliament can write all kinds of laws so long as they're not unconstitutional, and they can make sweeping changes, and we've seen that over the last six months, a lot of changes have been occurring. There are ways that the public may be able to influence that, not for this case, but in the future as to how things are put.
Together through the public opinion process. What's lovely it happened doing? If he gets convicted, we're tomento as the penalties, because usually common crimes have pretty aroundous penalty sitting around them.
They do, especially when you're talking about offenses where they can occur overseas but be charged here. That's already a very high bart. So these offenses all carry life imprisonment.
Life life, and life means actually life, Well there's.
The rest of your life or twenty five years basically, But it'll depend on how that's applied, because just because that's the maximum doesn't mean that's what people get. And just because there are a number offenses that carry the same penalty doesn't mean that they.
Will get at the top of each other. They can conserve it all at the same time. That's right, Yeah, contemporaneously. And we talk about the prosecutions difficulty, but let's talk about the defense. How difficod it's going to be.
It's impossible to know until you see the evidence. I think the real what I can say is that the difficulty of the defense is going to find is when it comes to whether or not the juries have already made up their minds, and how they can make sure as hard as they can through their advocacy and their submissions, that the jury brings an impartial mind to this. That's going to be an inherent difficulty.
I know there was don't come with a bregacy idea.
Yeah, And it's going to be difficult because you know, this story isn't going anywhere. It's continuing to be a massive topic because people are finally understanding how parts of this system work and it doesn't seem fair. So that's going to be really hard to manage. When it comes to the actual evidence itself, We'll only know when we start seeing it.
He's first bail application was refused, but I think he's got another hearing for bail coming up with sometimes not too far off pretty soon. I think, do you think you'll get bail? I mean, is he a flight risk or is he a risk of any type?
Oh, look, I don't know. I don't imagine, so there doesn't seem to be anything that would indicate that. But what I will say is bail. So it wasn't it was refused, but it also wasn't applied for.
He didn't apply for it.
No, so there are a number of reasons that can happen. Now. One of the issues, and this is something people won't know about unless they've had reason to look it up. In the local court, which is where the bail application is going to be determined, he can get bail. He can get bail from the magistrate, from the judge, and then the prosecution can hand up something that's called a Section forty bail stay. And practically what that means is
it overrides the court's decision. So the court can give him bail and if they hand up that certificate, he can still stay inside until it makes another application, which would have to go higher, likely to the Supreme Court. So that may have been something that factored in. It may not have, but I'm very interested to see what happens when you applies for Bell.
Do you just give me a comment. I mean, if you don't mind him, you may prefer not to as an officer at the court, but just the way he was arrested, I mean, do you think there was I mean, do you think that I don't quite understand the point to that and I've taken to a lot of mates of mine who are high ranking people in the police, and they said they would never do that. I mean
unless it was ordered. They were sort of giving given they were told to do it by let's say that the people are rank above them, which ends up in the political sphere. They're getting arrested on a being paraded in front of the media and his children and his children when he'd already offered to hand himself in if they wanted to charge him. I don't know what's the point of that.
Where's the public interest?
I don't think what is that in the public? So they might say, what is the public interests? See, we won't show the public that we're doing our job. Do you think is that the thinking?
Or look, okay, I promise this will be the last distinction I draw between the US and here. But in the US, when you do something like this, it's a massive media event.
It's in the US signed.
And it's designed and intended to be a media event. With the arrest that is not allowed. They have case law on that, which means they have judged law saying that it's unconstitutional and infring's rights. The only purpose is to humiliate somebody here. We don't have anything like that. Now. The major problem that I have with this, and I know a lot of people have, is it was unnecessary
and it looks very heavy handed. And I've spoken about this before, but where you have such heavy media presence for the arrest, the rest of the country knows about the arrest before it ever becomes a court before a court, and before it becomes a matter in which he has legal representation. And there's a real issue. And the reason the US found that it wasn't lawful is that there's a real issue. It impedes somebody's right to a fair trial because they've just seen him arrested, they've seen him
in cuffs, so therefore he must have done it. So that's the theory, and that's why they don't allow it over there. But for some reason we do allow it to you.
I've seen it happened before, and I just wonder whether it's actually whether it is or is not in the public interest for this for that to happen at all in those circumstances. I mean, I don't see what the point of it is. And I think it actually is mentally, potentially quite detrimental to getting a proper fair outcome. That is, every person with a federal state crime has the presumption of innocence. That's our system of advocacy. That's how we
operate in this country. And we're sure we've received that law from somewhere else, but it doesn't matter. That's what we've adopted, that's what we're signed up to, that's what we're doing. And I just think that that process, given, particularly given the power of the media today. And I had heard about this twenty times before he even saw that the evening news just gets into my My neuronal system is just getting hit up with this again and again.
It's repeating, and it's just it's certainly like I'll remember that more than I'm trying to remember something else. I'm trying to learn.
The other thing is, and this is really important, is it changes what can be said in court. So often, if somebody's told that they're wanted and that they need to hand themselves in, what defense will do is they will say, well, look, he handed himself in. You know, the jury can infer what they want from that. But flight, for example, is evidence of guilt can be evidence of guilt and they didn't do that, even though we said
that he would hand himself in instead. Now, what the jury is looking at as somebody who's trying to board a plane when he's arrested, and that is a very different starting position, a very different starting position, and.
So he's trying to escape. Yeah, and it was that's what I thought of him. So where was he going to? Well, he was just trying to get out of the country.
That's because they don't explain that. They don't explain that, you know, this could have been organized, or that it was open to coming in whatever. All they do is you see a picture, you see him in handcuffs, and you see he's at the airport trying to board a plane. I mean, the natural inference is right there.
Yeah, he's trying to escape, He's trying to get out of the jurisdiction.
I disagree with it. I don't think it's particularly sporting. I don't think it's very fair.
No, I don't think he's fair at all. Can I do you mind about you? Just because you have been talking a lot of it, lots of different things, and particularly in around policy, how do you think the government has handled the current fuel crisis well?
I think every government over the last twenty years handled it poorly. Not just this government, not just this government, just government generally over the last two decades has handled it particularly poorly. There have been a series of decisions that were intentionally made that have landed us where we are now and now unfortunately as a result, where as the country are suffering from them.
What I say about James is those governments have been voted out, yes, and these guys got voted in yes. So this is their baby.
Yes.
I mean, don't. I don't want them to tell me what happened in the past, because yeah, okay.
No, Australia voted of you. There's a lot of that.
You're back in. You got your second term, you're back in. So whatever they did. Therefore, by definition, if you if you won the elections two elections ago, you won an election that we didn't we voted them out because of all this stuff. So you're back in, you're in charge.
Yep.
How do you think they're handling it. I mean they're just spending twenty million dollars at the moment telling us to take the roof fracks off our cars.
Yeah, that's probably not the best use of funds given what's happening.
On one hand, they're saying everything's okay, it's cool. But on the other hand they're telling us it stops. Take the roof racks and put more air in the tires.
Yeah, and the same message you get, you know, don't worry, we have fuel. It's fine, but also maybe please stop buying so much fuel. Yeah, but don't worry about it. But yeah, do it if anything is confusing, very confused.
Do you feel like they're dreaming? Is like idiots?
I think that there has been a trend over certainly over my lifetime, certainly since I started studying law and working at it, from policing all the way through that this has become more of a top down approach, and it's become quite whole driven, paternal You know, you don't really know what you want here.
I know better. Yeah, well we're the government. It's just not right. It's just not true.
I mean, like, I look through I probably shouldn't, but I look through all the comments on my YouTube videos and they're really insightful. Yeah, some of them are just rude, but a lot of them are really insightful, really clever. Question.
Yeah, smart people.
Have switched on and they care. They care so much more than they let on.
I'm glad you raise it, James Goes, you know, and I think this is the sort of thing which makes stuff like you what you're saying on YouTube gaviral. People actually do care, and we are in an estimate about how much we care, and I just think that's a massive mistake by governments. They care, but also, well, we care, but also do we not only care about all these issues. Ben Robi says the ndis the fuel crisis. We care about all this stuff, but we're also pretty smart, yes,
and we do understand more than you think. Oh yeah, and you the government. When I voted you in, which was last year in March in twenty twenty five, these weren't things on the table that you're asking me to vote for. This is only recent, so I didn't actually give you my vote in favor of what you're doing now. Just because you're in doesn't necessarily follow that I agree with what you're doing right now. Now. What they would say is yeah, okay, Mark, the next lection, you can
vote me out for what I did. But that's backwards looking. I wonder what your thoughts on are you know, like, when should governments instead of polling and making decision polling? When the governments? When do you think it's right to say that the voting population is much more sophisticated today than there were twenty years ago, thirty forty years ago.
People care much more today than they ever did in the past, or a greater number of people care much more than they did that in the past, and those who do care care more, I think, and therefore governments should actually start to be much more consultative.
Oh much more, much more, not just a poll, no, but that doesn't really do anything.
The consultative Look what do you think?
Look, there should there should be much greater involvement. And the issue isn't with people not wanting to be involved. The issue is people don't know how to be involved. And there's been no real olive branch extended, whether it be from state parliament, federal parliament, the legislature anywhere, to invite people in to be involved. Instead, what ends up happening is you get, like you say, you get given polls, but they produce a binary result do you agree or do you not agree?
And the poll to that's exactly how you write the questions.
But it doesn't. That is one thing. How it's actually implemented is the important thing, and that's what people care about. So the more that people get involved, the better the system will be because people care and they have their own unique perspective they can bring. You know, somebody who's a bricklayer and Mount drew it will have a unique perspective to bring as to what we do with the fuel crisis and how it's managed and how it affects
him and how it affects him. And that's going to be representative of a whole range of people instead of just people who've, without disrespect people who've gone through high school, university ended up in a federal job and are like, well, no, this is how it's going to affect him.
It's not going to affect me that that person, because that person might catch the They're trying to work two days a week, right, whereas the brickie's got to go to work six days a week. He's got to turn up. He can't do it from my heart.
And the risk might be much higher, you know, like he might have his own business looking after his kids, trying to get across the mortgage. The cost of living is increasing.
He might have just started to expand might have borrowed some money, all things, and all of a sudden, the industry goes up, and he's trying to give more jobs more people, and by doing that, he's trying to be entrepreneurial, takes on more jobs that he normally would take on. All of a sudden, it's cost him much more to get to everywhere.
And his opinion matters a lot. He has a lot to be learned from it.
I mean, it's nearly like we need to have a live website for decisions that were never voted upon, but it's called it material decisions or significant decisions is going to affect a significant amount of the population where everybody can get involved, live and say what they think. They nearly vote.
More of an old school democracy where everybody.
Was and that's what I talked about. I'm glad you said that. So we pride ourselves, so does many of the Western nations, But we pride ourselves as being democratic. But the democratic process only happens once in this country, and it's every three years when you get an opportunity to vote. But the real version of democracy, which is originally sort of involved from the days of aristoical et cetera.
Was that every day they were debating the issues, and it was debated not just in Parliament but where it was all closed off to everybody, but it was debated in the square where everybody got their say. And that's probably democracy. Good system, Yeah, good system because at least the people who are making the final call get to hear about what the masses are thinking. We don't have
that anymore. I actually don't think we have a proper democracy anymore because more issues come up between elections than have ever have come up in the.
Past yet to say, and how they dealt.
With like COVID a good example, great example, I mean the hate speech was another good example.
For eight hours for people to put on submissions for the biggest sweeping reform for speech laws in this country. Ever, that's unacceptable. It's not enough time for people.
To get their So there's only forty eight hours.
It's such a small window of time.
And how do believe and find out about this so called forty eight hours?
Well, this is the thing. You don't unless you're involved in the system, you don't know where to look. So they put out a call for submissions people that can then put their submissions on. But you've got to remember, like even with the groups that did write submissions and get them on, it's a very small amount of time for let's say it's a big company, or let's say it's a union, or any group of people that represents
the interests of that group. It's hard in forty eight hours to really look at it, understand how that's going to affect everyone in your group. Then write really good.
Submissions that are clear, craft something, craft something, and submit it and get approved by your your colleagues. Everyone's going to have it legacy possible. It's like and everyone's got a view and a comment that and you change one hundred times over and then you've got to get out within forty hours. That's a very interesting thing. It was only properly established, structured funded interest groups respond to those things.
Yes, which is not necessarily representative.
They're interest groups, and it might be it might be polar opposites and you know, maybe that sort of works, but individuals us as individuals. Again, it's one of the situations where they're not really interested in it seems like they're not the politicians is not really interested. It's not the politicians. Not it's probably the public service, but not really interested in the process that arriving at what the democratic system believes in.
No, it's more efficient outcomes.
It seems that, yes, or maybe James ellis just so we can say we gave a consultation period. Yeah, we're running for forty hours because it is what we really want to happen.
We've already drafted. It's not saying that that's that's the question that.
You get by the way it came out so fast, Like in terms of drafting, you know how long drafting takes normally take should take for example, the terms of reference for the Royal Commission.
I'm so glad you brought that up.
Like that came out. Wasn't happening, wasn't happening, wasn't having out done. It's like you've been drafted six months before. To me, that's how it looked. I mean for someone who's done a lot drafting in his day, like when I was younger. But I just know how hard it is and how long it takes and reviews you've got to go through. You have to be particularly at a parliamentary level, and you know, havingny inputs you've got to get it doesn't happen over a couple of days. Never, No, I hope not.
I mean, it's very serious. The terms of a Royal Commission in terms of reference are very serious because, as you know, they they're the rules, they're the guidepost for.
The mission commissioner. And you know, I always like to see more than one commission. But anyway, two or three commissions is usually better.
More minds are always better, much better.
But one commission always tells me something. I mean, I did see this in the raw commission into banks. They pointed one commissioner and I immediately thought to myself, this is and it was Hayin and I was immediately and he's a judge, former judge, And I thought to myself, they should have an economist in there. They should have you know, one or two other types of people too, so the commissioner can be fuller in terms of experience and understanding, and because if you just have a judge,
it might just getend up getting a judge's view. Like I don't mean from a technical legal point of view type of view, you know what I mean, not not a broad based economics view or what's what works in terms of models around the world, et cetera. Not not and no academic maybe not enough academic in there. And the raw commissioner has also got one judge. In the current it's got one judge, and sometimes it makes me
think that the outcome is already preconceived. Well, in juster confidence, I'm not saying that she will do that because I don't know it right And for all accountcl it reads well, she reads well, but she, as you say, she's restricted to the terms of references she'd been given to by the government.
That's right, and that's what a lot of people don't understand. So I did a short video which got a fair amount of traction given how dry the content was, on how Royal commissions work, what they can actually do and what they can't, And almost every response was either appalled because they didn't realize how it actually worked, or appalled that the Royal Commission didn't have more teeth when it came to actually implementing change. So with the terms of reference, just for anybody who doesn't.
Know, that is what is the Royal Commission into the drums.
Any royals just the process generally, so the terms of reference can find what can be looked at and investigated to whatever the government says can be and beyond that, nothing not allowed in there, and parties will fight tooth and nail, and they will will get injunctions and they will say, which is an order preventing the court from doing something or in this case, the Commission from doing something, and they'll say, sorry, outside the terms of reference can't
be brought up. And that's what will happen. And then when it comes to the end. Another thing that a lot of people don't know is their recommendations. So it doesn't actually change the law. They're just recommendations. And then the government will look at the recommendations and they'll pick the ones that they want to put in place and they will shelve the rest.
Sometimes sometimes they do. Normally they do go with a recommendation.
They for the most part they do.
Yeah, but they normally do.
But it's not mandatory. Yeah, and I think that's where a lot of people get tripped up.
Yeah, whatever the Royal Commission says is going to happen, it's not the case, not at all. So the government. So I mean, there's that all saying, you know, like you're running a royal commission. You determine the outcome before you you have the raw commission by putting it in, by managing the terms of reference.
Of course, if you can manage the scope of the investigation. I mean, it doesn't seem like that much of a stretch to say that you can manage the outcome. Yeah, what can be looked at.
And the judge or sorry, the commissioner, no matter what their background and their ability and their sense of acting properly is or is restrained or constricted, restricted from what they can cover off. And it's not their fault to work with and factually they're compelled to work that way exactly. And someone can get an injunction and so no, you cannot go beyond that point, that end of story, and they get a court order and they have to go
back to where this started from. And whilst we're on controversial stuff, one of the things that definitely fascinated me with this whole Desi Freeman case down there in Victoria, what do you what do you make of that stuff?
I think it's it's symptomatic of a bigger issue, really, I mean what happened was appalling, really terrible. I mean, both ends of it that is being killed and that it ended the way that it did because now there's not going to be any investigator. Well there's not going to be any public trial or x donation of what occurred. There'll still be an investigation and a coronial.
Then that's a good example of public in is a public deserved as a.
Great example, the public do deserve to know. It was a huge thing that happened, a really big.
Especially this business about being part of some group that sovereign citizens, sovereign syism. Yeah, I mean what does that all mean? Do they exist? How much influence they they have on these actions?
They definitely exist. The ideology definitely exists. That was imported from the US here and it has no basis here. It has no basis in the US either. But I saw this a lot when I was prosecuting, because I would obviously I'd been caught five six, seven hours a day running cases, and you don't really get a chance to look at what the actual case is often, so you'll just meet these people as you go and you'll run the case. And sovereign citizens almost always represent themselves.
They say, you've got no jurisdiction to me, Yeah, they do.
They say things like that. But what's sad is it's not people who are nuts or crazy or violent. They're people who are so unbelieved, disenfranchised with the legal system, and people who find who can find no connection and no bridge across that. They then turn to something that gives them an easy answer, which is the sovereign citizen idel and.
Other words, I got my own laws on it, yours down aponomy.
It's a very attractive proposition when you feel like such an outsider and that there's no way back, and I think it gets compound. And this is why I'm not overly harsh on sovereign citizens at all, because I can understand how they got to where they got to, and I find that people often want to write them off, they want to have a laugh at them at their expense. It doesn't help. It's just pushing them further along the
garden path. And what we need to do is find a way because there's clearly an issue where people feel so disconnected from the legal system that they're meant to be involved in. To bring them back and make them feel involved so that they can make changes. I mean, it's a really depressing issue because it shows a real systemic failure for US as a country, that people are so removed from this system that they feel that that is a more sense route to go down.
And the Desi Freeman is an extreme example of the final outcome of what can happen with something. He goes fucking badly wrong, like oh, really bad, terrible and two people dead. He's dead as well. But on top of that, there's now a chasm we do not know why.
And unfortunately there is now a flag that people with that ideology can point to and SAFETYE.
Hold you so they're killed him?
Yeah, and I think you know, you say, where does it come from? I think it's really a twofold issue at its absolute basic level. One is most Australians don't understand our system or our rights at all, and they're not taught them, so they can't understand them. You know, you wouldn't criticize the twelve year old if not knowing something they weren't taught. Well, we were all that twelve
year old and we were never taught it. So then what happens is they get into adult life and the law expects them to know the law.
There's a presumption.
There is a presumption, but it's just a little bit removed from reality at this point. So when people come into contact with the law, the system they thought they had doesn't exist, So in their mind it's not legitimate because that's what they see as a legitimate system. And that's the problem. And you brought it up before, this idea of a proper representative democracy where people can actually
have influence of things between election cycles. That would be a really nice bridge to try and bring people back into the fold and feel included and like they're a part of building the country moving forward.
I actually think people would love that Australians are actually, as post Americans, much more interested in what's being decided for us. Yeah.
I think we play it off like we're not all that interested, but not even that. Deep down, people are very interested and there's an awful lot to be interested in. I mean, even things like the privatization of roads and resources. People really should have a say in that. Because they started off as ours as a country, as a sovereign capability, for example, the refineries, and then with very little regard.
To what the public thought was in there was no voter on land.
And they just start shutting them down. And now we're in the situation we're in. And this is the point, I think, because there is so much happening in such a short period of time where Australians have said, actually, you know what, I really do care about this and what's your answer? Because I wasn't involved in the decision making process here? So how did you get to the decision? And how do we fix it?
By the way, you know, if you're the government, you should do that because not not because it's the right not only because it's the right thing to do, but because either can say down the track, will you knew about it? You ei they didn't say something, or you said it was okay we or we did ask everybody, and on the balance of probabilities, on the balance we had to make a call because you know, olderly it's going to be a captain's call. That's the government. We
won't admit. I get I accept that. But equally they should be consulting with us or allowing us the opportunity to consult with them. And that's modern democracy. It is.
You know, people refer to this idea of a social contract, which is that we give up a lot of our own personal powers and freedoms for the government to look after the country as a whole and deal with it, and that's the focus. But it's a contract, so there's another part of that because we need to benefit in some other way, which is that we still are involved in what it is we must follow. You know, there's
a presumption that everybody knows the law. I think there's a presumption before that, which is that we had to say in what the law was. So it's reasonable that you would have known it. And that's just not happening at the moment.
Yeah, and I don't think, I mean, to some extent it's our fault because to some extent we've abrogated all our rights up to the government. Like it's a bit of a but I also a bit of a problem for restrainers. But at the same time, I don't think we realized the outcome or the potential for those outcomes because everything was going along swimmingly. You know, economy was good. You know, like we didn't have any mass shootings. We had put up but basically had nothing else other than that.
We're in pretty good shape up until COVID and then but COVID has revealed a lot to us and everything that's happened. There's been a lot of events since COVID and UH and you know, the whole change immigration, the complexion of our immigration to Australia. Everything's changed a lot since COVID. It's just probably in every aspect. And I think that you know, a modern government, I mean maybe you know the opposition parties, all the new parties are trying to get up. You know, if they could start
to talk about these sorts of policies. I reckon the first party that comes out and says, listen, we're a new party and what we're going to do is we're going to say we're going to make sure that we introduce some website and we can all vote for you in your local area and everyone gets a number and we're not going to record the number with your photograph or someone. They had to make sure people I've been pegged.
But at the same time, you know, you can vote anonymously, like you do it when you go to the When you go to the voting, people don't know what you don't know who it is, so you know you don't feel tard We'll let you get it get targeted. I reckon that would be whoever does that, because that's proper transparency. David win election, I think so too.
I think everybody could probably get behind that. You know, and you speak about COVID. The reason I think that COVID was such a huge deal, apart from the fact that it changed the way we live our lives and it still has, is, as you say, we've seated a lot of our rights to the government. It's never really flexed its muscles, and COVID was the first time the
government really flexed the power that it has. And now it's almost like we've been bitten by a pet dog and we're like, well, hang on, if you're capable of.
That, like what else you get to judge?
Exactly? Like what else is on the cards? And we see that now with this current deal that's before the Federal Parliament, with the expansion of the asier of powers, which is way more powerful and people didn't even know those powers existed, well most of is no. I mean, it's it's a real concern, and it's not because people aren't interested. People are interested, but they're just not being given the opportunity to have a voice in it. And I think that's more destructive than anything else.
The Labor Party prosecuted the voice for our first nation's family and friends. But what's interesting about that is we should have a voice for everybody.
Yeah, I think, I think as well as them.
Yeah.
Look, we all need more of a voice than what we currently have.
Yeahh a problem voice, absolutely, and none of us would care whether it's online or however. We don't really care.
No, we just want to feel heard, yeah, and listen to, you know, proof that we've been listened to, not just as we said earlier. You know, well we've given them forty eight hours to put on their submission. If I'm not going to read them, it doesn't matter. Yeah, that's uh, that's the impression I think Australians because I lived in the US for a number of years, Australians are really really good at detecting bullshit. Yeah, Like they can smell
it from a mile away. And that applies when it comes to politics more than anything, because the moment you hear something, you're like, all right, where's the double speak? Yeah, and then three seconds later, of course they'll say, you know, like the what we're saying with fuel, there's no issue with fuel, and you're like, wait for it, than I say, but also don't buy it unless you need it. It's like, okay, come on.
Yeah.
So there just needs to be more honesty and more transparency and more of a voice for us to be able to be heard.
Less bullshit. I love it enough, James Blessing, Thanks you, emotion mate. That's pretty buddy good. I'm going to finishing on that less bullshit. I'm very appy with that. Thank you mate, thank you, thank you mate. Appreciate it.