In civilised society, the principle of natural justice must rule

Brittany Higgins at the National Press Club in Canberra in February. Picture: NCA Newswire/Gary Ramage

My mate Tom Percy QC is a renowned criminal silk. I’ve known Tom all my professional life, and he also shared my late father’s passion for the sport of kings. Apart from his frankly formidable career at the bar, Tom also found time (still unsure how) to write a novel, called The Curate’s Egg.

No, this isn’t a plug; I paid for my copy. I can, however, vouch for the fact it’s a rollicking good read and, as it turns out, a timely one too. In short, it’s a tale set in Western Australia’s colourful mining industry. The main protagonist is facing the prospect of justice denied. This is where I’ll leave the setting of Percy’s book (go get a copy, it’s a cracker) and draw us back to the real world as I invite you to writhe around with me in a ball-pit full of hand grenades while we talk about rule of law.

Most Australians, thankfully, will never engage with the criminal justice system. Most of us will stay at arm’s length from courts and lawyers and police, and for that we should be grateful.

As Percy says, for most people, the justice system, with all its complexities, nuances and challenges, doesn’t exist until you’re swimming in it.

And there’s the rub. There seems to be a cohort of Australians who don’t think the rule of law, natural justice or the presumption of innocence matter any more. It’s all about the feeelings. And typically, perhaps predictably, these folk are found on the so-called progressive left.

This truism has been thrust front and centre this week after the trial of a man accused of the sexual assault of former Liberal staffer Brittany Higgins was delayed until later this year following comments made to the media by a journalist in an award acceptance speech.

But in truth this phenomenon, if you like, perhaps first reared its head during the trial of George Pell. Pell’s conviction was overturned unanimously by the full bench of the High Court, yet some like to refer to this resounding decision as a technicality. As if the rules of evidence and burden of proof are pesky and inconvenient. This was no technicality, it was an unmitigated legal drubbing of the decision to convict.

Child sex abuse victim Michael Advocate holds up placards outside the High Court of Australia in Canberra, Wednesday, March 11, 2020 for George Pell's final appeal. (AAP Image/Lukas Coch)

Let me pose this question. If you or someone you love were accused of any crime, in any circumstances, would you expect and fiercely guard your right to procedural fairness? The presumption of innocence? Anyone who attempts to argue no, or to claim these things don’t matter, is welcome to spend some time in the court system and waive their rights.

Those of you who aren’t old enough to remember should read the story of Lindy Chamberlain. I remember as a child in primary school watching the news coverage and seeing people baying for her blood. Literally. Even years after a conviction, even as she spent years in jail protesting her innocence, there were those who wished the death penalty on her.

She was, as we all know now, innocent and paid a terrible price. There are hundreds of thousands of cases less famous but no less traumatic in various ways for those involved, that will never be the subject of media attention.

Every person, plaintiff and accused, deserves their day in court in a manner that is free from interference and prejudicial intent. That is no less true for Higgins and the accused. Please tell me how it assists her when the process of justice continues to be delayed unnecessarily? Justice delayed is justice denied.

The 1982 murder trial of Lindy Chamberlain in Darwin, Northern Territory, over the 1980 disappearance and presumed death of their baby daughter Azaria at Uluru near Alice Springs. Lindy and Michael Chamberlain outside court in October 1982.

It’s easy enough to blame social media but the problem is deeper, more complex. I think to a point there are many who, as mentioned earlier, simply don’t believe fairness in a judicial sense applies to everyone, and have a concept of fairness that is based on the horse they’re backing and they way they feel. The fact is, trial by media on any matter, in any jurisdiction, is the equivalent of dragging the guillotine into the public square and going for it.

At the risk of sounding like a civics teacher, rules of natural justice protect us – citizens – against governments, against any individual or body that would seek to pervert them, intentionally or otherwise. Yes, that includes media.

A civilised society simply does not toss out the rule of law for the most fashionable cause of the day. Neither does the bench take its cues from social media, thank the good Lord for that.

In another world, at another time in my life, I was unfortunate enough to be an uncomfortably close observer of the system I am talking about. As a journalist and in my personal life.

The harsh truth is that should anyone fall foul of the law, or worse, circumstances beyond your control befall you, and you end up before a judge, I can guarantee you would demand procedural fairness and the presumption of innocence.

Believe all women, believe all men. Both statements are as ludicrous as the other. Believe the evidence and let it be given.