The Rule of Law Institute of Australia has raised questions about whether high-profile publicity surrounding Ben Roberts-Smith makes it possible for war crimes allegations to be fairly judged by a jury.

The Institute's intervention goes to a foundational principle of criminal procedure: an accused's right to a fair trial before an impartial tribunal, guaranteed under Australian law and reinforced by Australia's international human rights obligations.

Why does publicity threaten a fair trial?

Intense media coverage of an accused person can shape public attitudes long before any charge reaches a courtroom. Where potential jurors have absorbed years of reporting, commentary and speculation, the risk of prejudice at the point of trial increases.

That risk is acute for war crimes allegations. Such cases attract sustained national and international attention, and the underlying events typically occur far from the jury's experience, in conflict zones with contested accounts and classified material.

What questions does the Institute pose?

The Rule of Law Institute of Australia asks, in substance, how the criminal justice system can preserve the presumption of innocence when the accused has already been the subject of extensive publicity. The concern applies both to jury selection and to the conduct of the trial itself.

Australian courts have long-standing mechanisms for managing prejudice, including:

• voire dire questioning of prospective jurors;
• judge-directed warnings to put publicity out of mind;
• contempt-of-laws restrictions on reporting of pending prosecutions.

The Institute's commentary suggests these safeguards may come under strain when coverage reaches the scale seen in matters involving Ben Roberts-Smith.

What is at stake for practitioners?

For criminal practitioners, the debate touches on practical decisions: applications to change venue, challenges to jury arrays, and requests for extended juror vetting in cases with heavy pre-trial publicity. Prosecutors, in turn, must time charges and public statements carefully to avoid prejudicing any future proceeding.

The broader question — whether jury trial remains workable for war crimes cases amid saturation media coverage — remains open. The Institute has not proposed a specific procedural reform in the commentary, but its intervention signals that the issue will likely feature in future argument over how any such prosecution is conducted.