Bettina Arndt: Protecting men’s rights in sexual assault cases is an imperative

The Walter Sofronoff report into the Brittany Higgins case has shown that prosecutors must adhere to the letter of the law and follow due process in sexual assault cases, writes Bettina Arndt.

Shane Drumgold’s resignation comes as no surprise. Walter Sofronoff’s report on the ACT inquiry into the Brittany Higgins case offers a forensic analysis of the prosecutor’s “serious misconduct”.

It provides a firm basis for the ACT government to ditch him and perhaps even support criminal charges against him.

It also may provide ample fuel for Bruce Lehrmann’s multimillion compensation claim against the ACT Office of the Director of Public Prosecutions.

It appears Sofronoff felt constrained by the narrow terms of reference and didn’t address the feminist capture of the justice system which has removed any real role for police in determining which rape cases go to trial.

And he appears to have let Heidi Yates totally off the hook, claiming the Victims of Crime Commissioner was simply doing her job — failing to properly consider the effect of her conduct on the public and jury.

He clearly ignored the unprecedented way she used the Higgins case to further her broader goal of shaping the way the justice system handles sexual assault.

Sofronoff’s conclusion that Drumgold was correct to proceed with the prosecution of Lehrmann can also be questioned.

The Commissioner praised the “thorough” efforts of police resulting in a “sound case” — which originally concluded there was insufficient evidence to charge.

Former ACT director of public prosecutions Shane Drumgold. Picture: Martin Ollman

The inquiry revealed how the police only changed their position after being persuaded by a zealous DPP, probably supported by an ACT government keen to showcase this case for blatant political purposes. But was the decision to charge correct?

The Commissioner appears to accept that the test to charge is “reasonable prospect of conviction” which means the criminal standard — beyond reasonable doubt.

That seems to be saying that an assessment of victim credibility by investigators is but one relevant matter which appears to be at odds with the prosecution policy of all prosecuting authorities in Australia.

Indeed, an Australian Institute of Criminology research paper which interviewed crown prosecutors from around Australia stated that “they were unanimous about the importance of victim credibility in adult sexual assault cases”.

For Lehrmann there’s a certain irony in knowing that for all Drumgold’s unseemly zeal to put him behind bars, it was the prosecutor’s failure to prevent Lisa Wilkinson from delivering her Logies speech which led to the postponement of the trial, which allowed the defence to gain access to vital police information about Higgins’ evidence — and probably kept him out of prison.

Sofronoff is convinced that even if that had happened, that would not have been Lehrmann’s ultimate fate.

He wrote: “Had the defence, by their professionalism and persistence, not obtained (the police documents) despite the improper obstruction they faced, and had the documents come to light after a conviction, in my opinion, the conviction would have been set aside on the ground of a miscarriage of justice.”

Maybe, and then again, maybe not.

Having learnt from Lehrmann about the mighty struggle he faced as a broke man trying to find the right lawyers to defend him in the criminal case, it’s a glib assumption that, if he had ended up in prison, he would have managed to find a legal team willing to put together such a complex appeal.

And every time he goes near a court, it costs significant sums, even with pro bono lawyers.

This is a man embroiled in one of the most sensational rape cases this country has seen and still none of this is easy.

Spare a thought for the ordinary men who end up in prison as a result of zealous prosecutors who seem willing to not adhere to all those legal principles demanding fairness, disclosure of exculpatory evidence and protection of the rights of the accused.

ACT Inquiry Commissioner Walter Sofronoff. Picture: Tertius Pickard

According to The Australian, the Legal Aid NSW Criminal Law Conference this week ran a survey asking the audience, which comprised mostly experienced criminal lawyers and some prosecutors and barristers, how frequently does the prosecution fail to comply with its duty of disclosure in criminal proceedings in NSW?

Of about 300 lawyers there, 93 per cent of participants said the prosecution failed to comply with its disclosure obligations in NSW either routinely or frequently.

This issue is not limited to the conduct of Drumgold but underlines the need to ensure disclosure obligations are met so that men accused of sexual assault are granted a fair trial.

My files are bulging with cases where that fair trial didn’t happen, with one of the most significant involving Sara Jane Parkinson, who went to prison for making malicious false allegations of rape and violence against her former fiancé Dan Jones.

You may have seen the special 60 Minutes feature highlighting this exceedingly rare event — a woman actually being punished for faking rape and violence accusations.

I am not suggesting anything about Higgins in this respect but we need caution where sexual allegations are made.

The Dan Jones case took place prior to Drumgold being appointed yet the ACT Office of Public Prosecutions pushed ahead with 32 charges involving rape and violence despite concerns being raised about the evidence supporting the case, particularly the truthfulness of Parkinson.

There’s much to be thankful for in this public examination of the zeal driving some of our prosecutors.

Hopefully this scrutiny will extend to the influence of victim-centred justice currently undermining the rights of men accused of sexual assault.