Moral panic, in its various forms, has been a frequent, and dangerous, motivation for setting aside fundamental legal principles. Today’s moral panic surrounds the sexual assault of women.
The statistics speak of too few prosecutions, and even fewer defendants found guilty when cases do proceed. We should expect a system that delivers justice for victims of rape.
The unwieldy #MeToo movement – an understandable reaction to the imbalance – has now pushed the pendulum in the other direction.
Outrage that too few perpetrators are punished has driven some in the media to use untested allegations to up-end the presumption of innocence, rendering a fair trial all but impossible.
Lynch mobs have always been with us, but their power is graver in the age of saturation media, unregulated swathes of the internet and the online wild west of social media. This moral panic, and its implications for the legal system, must be at the centre of the ACT board of inquiry into the Lehrmann debacle last year.
Chairman Walter Sofronoff KC will surely have to decide whether political, social and other pressures undermined fundamental principles about the presumption of innocence, the ACT Director of Public Prosecutions’ decision to prosecute Bruce Lehrmann, and the guarantee of a fair trial. That inquiry is set to formally open on April 17, when counsel assisting, Erin Longbottom KC, will outline the issues and the witnesses to be called. Then, on April 27, the first witness – likely to be DPP Shane Drumgold – will take the stand. And for good reason.
Drumgold features in the three biggest issues facing this inquiry. The first is whether Lehrmann, accused by Brittany Higgins of raping her in the early hours of March 23, 2019, in a federal minister’s office, should have been prosecuted at all.
Senior police had serious doubts about the quality of evidence against Lehrmann, and the mental health of Higgins, and about political interference in the saga. Despite these concerns, the DPP proceeded to prosecute the former political staffer for rape.
Sofronoff’s starting point will be to explain the correct prosecutorial test, including any differences between guidelines that apply to police and those that apply to the DPP. In determining whether the DPP breached his duty in deciding to prosecute, Sofronoff may explore several scenarios. Was Drumgold’s decision to prosecute wrong? Separately, was his decision made for wrong reasons? Was the DPP incompetent or reckless by proceeding to prosecute if he knew there was more material to gather that could up-end reasonable prospects of a conviction? If the DPP is found to have failed to make the right decision or relied on the wrong reasons, his reputation may suffer a significant blow.
But there is no further penalty or higher process. While most decisions of executive officers are reviewable, a prosecutor’s decision to prosecute or not is not reviewable by the judiciary. Except in the limited cases of bad faith – or malicious – prosecutions, courts are not invited to involve themselves in the prosecution process. That’s why our legal system depends on prosecutors exercising the highest standards of expertise and care: we entrust them with a non-reviewable power to, if they get it wrong, ruin somebody’s life. A wrong decision not to prosecute can ruin a genuine victim’s life; conversely, a wrong decision to prosecute may destroy a defendant’s life.
Clarity from Sofronoff about the correct prosecutorial test will be especially timely given that many people are concerned that some DPPs are taking the easy route – sending matters to a jury even where evidence is not credible – to avoid criticism.
That said, we shouldn’t be blind to different kinds of moral panic. It may undermine confidence in our justice system if concerns of that nature are based on perceptions, rather than reality.
The Sofronoff inquiry’s other critical role will be to explain precisely what the presumption of innocence means, how it operates and why it exists. It is not part of Sofronoff’s remit to decide whether contempt charges should have been brought against Higgins or anyone else for actions that interfered with the administration of justice, but by explaining the presumption of innocence fully he will arm us with the legal and intellectual framework to judge for ourselves.
We can better judge Higgins’s behaviour – going to the media before making a formal police complaint – and her comments outside the court when a mistrial was declared. We can better determine whether contempt proceedings should have brought against sections of the media that, to use ACT Chief Justice Lucy McCallum’s words, obliterated the distinction between an allegation and a finding of fact.
We can better judge whether former prime minister Scott Morrison’s apology to Higgins in parliament risked tainting a future jury, and whether the National Press Club’s decision to host Higgins or comments by former prime minister Julia Gillard (“her bravery must lead to meaningful change”) risked undermining a fair trial for Lehrmann by similarly ignoring, in very prominent and public ways, the presumption of innocence.
Using Sofronoff’s test, we can judge whether the ACT Victims of Crime Commissioner – whose role is to “promote and protect the rights of people who experience crime” – undermined the presumption of innocence by attending court with Higgins and standing next to the complainant when, after the mistrial, Higgins spoke of “our national shame” – a system that she claims failed her.
The third significant matter for Sofronoff is whether Lehrmann received a fair trial, in this respect: a prosecutor is duty-bound to reveal everything in his possession relevant to the case that might assist the defence, including material that might elicit further trains of inquiry by defence lawyers. Even if a prosecutor comes across relevant information late in a trial, the prosecutor must disclose that to the defence.
Did Drumgold meet that duty at all times? Exploring this duty, Sofronoff will necessarily make findings about Drumgold’s accusations about police misconduct during the trial. For example, can it be wrong for police to speak with defence lawyers during a trial if they, like the prosecutor, are duty-bound to hand material relevant to the trial to defence lawyers?
This board of inquiry, led by the highly qualified and fearless Sofronoff, will leave an important mark on the country if it helps set people in the highest places straight about the dangers of disregarding fundamental principles at the heart of our criminal justice system. Lord knows many journalists, and countless lawyers too, need a refresher course from him.
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