Straight Talk with Mark Bouris
Ben Roberts-Smith Arrest: Law Expert Reveals What’s Really Going On
14 Apr 2026
Chapter 1: What background does James Glissan have in law and policing?
James Glisson, welcome to Straight Talk, mate. Thank you. I really appreciate you coming on. You're a practice manager of Glisson & Associates. They're lawyers. You've got two offices here in Sydney. You spent time, I think, as a police prosecutor for a while?
Yeah, and a police officer as well. And a police officer as well. Yeah.
Just give us a quick rundown of what your experience has been, both as a cop, police prosecutor, you know, what your law firm does, the sort of work you do and why, and we're going to talk about Ben Roberts Smith in a moment. Yep. 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 relation to Ben Roberts 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 spend 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 for, 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.
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Chapter 2: What are the critical differences between civil and criminal standards of proof?
Everybody has a say on it. Everybody wants to show their position on it.
Well, here we are today even doing it. And I wouldn't ordinarily have this sort of conversation, but yeah, exactly. I mean, I've got a view on it. I didn't think of the international aspect of it, which I'm glad you raised that, and how we look internationally. Because we have those sorts of policies here right now, the Paris Agreement, for example, the Paris Environment Agreement.
It was signed under a different government, by the way, but still, the original signing of that or 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 decisions, which you and I, as voters, we never have a chance to have any say in.
Not properly.
Because it gets built. And then there are iterations once the election's over. And those iterations change.
Yeah.
Can change the overall thing over time. They just slowly chip away at it. So on an international basis, at a Commonwealth level – the Comfort 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 in a war environment. But what's interesting to me when I read through them is others refer to his crimes
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 abetting or something very much like that yeah uh so it's interesting to see those charges appear where nobody else has been arrested and is is about to be put on trial
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Chapter 3: How does media influence prosecutorial decisions in high-profile cases?
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. It's very interesting because that's risky. Very risky.
So who ultimately is bearing this risk, though? I mean, like, who's the person? Someone must have sat there and said, okay, all those things. Someone's come and said, look, minister or look, head of the AFP or whoever you are, look, On one hand, justice must be seen to be done.
Our international allies or people who fight us in war or fight with us in war want to know what type of country we are in terms of the military we send, in terms of the values and morals of 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. Yeah. Which will make it look like it was a witch hunt.
Yeah.
In which case, we've got a lot to lose. So someone has to sit there and go, well, on one hand this 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, could be the DPP.
But what do you think are some of the things that they were looking at in terms of this weighing up to decide to go with it as opposed to, no, let's just 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 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, that the judge should see, and keep the stuff that shouldn't be out. and then make submissions.
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Chapter 4: What challenges does Australia face in prosecuting war crimes?
So now the burden of proof, the people who have to prove something are the prosecution and the prosecution alone. And that's the police. Well, that's the AFP. That's right. 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. Yeah. The burden proof. And in- No, no, I forgot the words.
I should remember, but 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 are required to do to prove something.
But if you break the words down, it kind of brings light to it by itself. If there is a reasonable doubt... then you can't find them guilty.
So 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. You must acquit. I must acquit, not guilty. So what is a reasonable doubt?
I knew you were going to ask that question. Okay, what are the guidelines around it? What would the 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 is being complied with really. Yeah.
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 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, which I 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.
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Chapter 5: Why do many Australians feel disconnected from the justice system?
How's that 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 Commonwealth case, is it the same as like in a state case? You know, you live in New South Wales, you're on a list, you know, you've never appeared for a case, you just automatically somehow get this notice that you're required to turn up. Yeah. And unless you've got a good excuse, you know, you're going to get fined or something, you're compelled.
And you won't know. 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. And there'll be people hoping they get on this case for sure.
Yeah.
I bet there are. And therein lies the problem, right? Because it's become such a controversial issue. It's become such a big deal. People want to be involved. And people have, I mean, maybe not prejudged, 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. And I don't know if you get around it.
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Chapter 6: What is the significance of the Ben Roberts-Smith case for Australia's legal system?
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 um process what's what's likely to happen to him if he gets convicted
We're talking about in terms of penalties because usually Commonwealth crimes have pretty horrendous penalties sitting around them.
Yeah, they do. Especially when you're talking about offences where they can occur overseas but be charged here. That's already a very high bar. So these offences all carry life imprisonment.
Life. Life. And life means actually life?
Well, there's- The rest of your life or- 25 years. 25 years. 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 of offenses that carry the same penalty doesn't mean that they- They all get added up.
Yeah, they can serve it all at the same time.
That's right.
Yeah, contemporaneously. And we talked about the prosecution's difficulty, but let's talk about the defense. How difficult is it going to be?
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Chapter 7: How does the standard of proof differ in civil versus criminal cases?
I mean, I'd heard about this 20 times before I even saw the evening news. It just gets into my neuronal system. It's just getting hit up with this.
Again and again, it's repeating.
And it's just settling. 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. 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 he said that he would hand himself in. Instead, now what the jury is looking at is somebody who's trying to board a plane and when he's arrested. And that is a very different starting position, a very different starting position. And it was- Looks like he's trying to escape. Yeah. And it was- That's what I thought to myself. Where was he going to?
Well, he was 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 he 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.
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Chapter 8: What role does public opinion play in the prosecution of high-profile cases?
Yeah. But that's backwards looking. Yeah. I wonder what your thoughts on, you know, like when should governments – instead of polling – and making a decision on polling, when do you think it's right to say that the voting population is much more sophisticated today than they were 20 years ago, 30, 40 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 in the past. And those who do care, care more, I think. And therefore, governments should actually start to be much more consultative about Oh, much more.
Much more.
Not just a poll?
No. Well, that doesn't really do anything. But consultative. What do you think? Look, 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, like you say, you get given polls, but they produce a binary result. Do you agree or do you not agree? Yeah, and it depends how you write the poll, too. That's exactly right. How you write the questions.
But it doesn't... 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 in Mount Druitt 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 in Mount Druitt.
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