Don’t judge the legal system for sorry saga of the Lehrmann trial

The events surrounding the criminal allegations made by Brittany Higgins against Bruce Lehrmann are a lamentable example of what happens to the justice system when the principles of prudence, discretion and sobriety of judgment are set aside in favour of publicity, politics and rank ideology.

From the start of this sorry affair, people who should have known better have inserted themselves into the fray, usually to the great detriment of both parties. You would hope that with the conclusion of proceedings against Lehrmann, who has always maintained his innocence, this practice would have slowed. If anything, it has quickened. All the while, Higgins has suffered a serious decline in her mental health in circumstances that can only be described as tragic.

Bruce Lehrmann denied raping Brittany Higgins in a minister’s office at Parliament House in March 2019.Credit: Alex Ellinghausen

Consider the remarks of ACT Director of Public Prosecutions Shane Drumgold, SC. On announcing the charge against Lehrmann was to be dropped, Drumgold praised the “bravery, grace and dignity” of Higgins, and asked that she be given time “to heal” after facing “a level of personal attack that I’ve not seen in over 20 years of doing this work”.

While this may be true, there is a serious question as to whether it is appropriate for a DPP, who has a duty to the administration of justice rather than to individual complainants, to make public remarks of this kind. Drumgold said nothing of the presumption of innocence or whether Lehrmann may also need time “to heal”. Nor should he have. And that is the point.

And what of the substance of Drumgold’s observations? Has he ever seen a sexual assault complainant consciously eschew the protection of anonymity that is legally available to every sexual assault complainant in ACT criminal proceedings? If the answer is “no”, or “only on a very limited number of occasions”, Drumgold’s placement of Higgins’ experience on a spectrum of 20 years of practice is meaningless.

The fact is there was nothing normal about the Lehrmann trial, which occurred under a glare of unceasing publicity. Such matters are invariably tried in conditions of anonymity, which is a statutory right afforded to the complainant.

There have been other public servants whose conduct in relation to these matters has been questionable. Scott Morrison’s notorious parliamentary apology to Higgins plumbed a new depth. Whatever political advantage Morrison perceived, the potential prejudice that could have been occasioned to a fair trial by a person of the prime minister’s stature in making a comment of this kind, before a jury was even empanelled, is impossible to miss.

This occurred against the backdrop of alleged “political interference” in the investigation stage of the Lehrmann case, according to the ACT police manager of criminal investigations, Detective Superintendent Scott Moller (who says he would not have charged Lehrmann, but the decision was apparently taken out of his hands). This chilling allegation by a senior AFP officer warrants a full accounting of the “political interference” being referred to, particularly given the implicitly political context in which the trial unfolded.

And what of Tanya Plibersek? On the day of Drumgold’s announcement, she published the following comment on social media: “Survivors of sexual assault know that convicting perpetrators is the exception, not the rule. This has to change.”

There is enough plausible deniability in this comment to avoid the imputation that she was referring directly to Higgins and Lehrmann, but only just. And there is enough ambiguity in the comment to delight a receptive crowd without the inconvenience of condescending to a serious policy discussion.

Is she calling for law reform? If so, what precisely is she suggesting given the strong procedural protections that are now offered to sexual assault complainants in criminal prosecutions? Perhaps an erosion of the criminal standard of proof which has been the cornerstone of civilised society for centuries? As a minister of the Crown, Plibersek might humour the public by explaining exactly what she meant.

Perhaps at the same time she might also use her public reach to explain that, aside from the legal availability of anonymity to all sexual assault complainants, such persons may never need to set foot in a courtroom at all – as a statutory starting point, such evidence is given from a remote witness facility.

And before we grant an audience to ambiguous calls for “change”, the public ought to be reminded that Higgins’ experience is not the experience of sexual assault complainants generally. This is not to suggest that Higgins wasn’t perfectly entitled to take the course she took, but the public must be informed that Higgins’ name was only ever published because she specifically chose to approach the media with her allegation.

The broader point is this – superficial public utterances by persons in high office do not advance the administration of justice in any respect, and usually have the opposite effect. They do not set a foundation for legitimate discussions of law reform, which has occurred in this area by quantum leaps over recent decades in any event. Instead, they perpetuate outmoded stereotypes of our justice system and perhaps deter victims from coming forward. And there is apparently no consequence to any of it.

ACT DPP Shane Drumgold announced the re-trial of Bruce Lehrmann would not go ahead.Credit: Rhett Wyman

Lisa Wilkinson puts at risk a criminal trial in the ACT Supreme Court – and what institutional consequence have we seen for her?

Drumgold lauds the “bravery” of a person whose allegation remains unproven, immediately following the execution of his duty as a detached Crown prosecutor – and what becomes of that?

Higgins delivers a speech on the courthouse steps impugning the criminal justice system while a prosecution is on foot in which she is the complainant – who makes the decision as to whether she will be prosecuted for contempt; Drumgold?

Morrison uses parliamentary privilege ahead of a highly publicised criminal trial – where is the consequence for that?

And cabinet minister Plibersek speaks of “survivors” and “perpetrators” before the din of Drumgold’s press conference has even died down.

A rot has taken hold at the core of our institutions. But it has nothing to do with the state of the law, and everything to do with the fealty of our public officials to the time-honoured principles upon which our society was built. Worse, there appears to be a total lack of consequence and accountability when there may be cause to investigate whether those principles have been hung out to dry. If you want to talk about change, that would be an excellent place to start.

Steve Boland is a Sydney-based barrister.

The Opinion newsletter is a weekly wrap of views that will challenge, champion and inform your own. Sign up here.