During the ACT Supreme Court trial of Bruce Lehrmann in October, another alleged rape case was being heard in courtroom four right next door. This other case did not transfix a nation. It involved a young woman who worked in a brothel who was allegedly nearly choked to death during an alleged rape. A jury found Joseph Ayoub guilty of engaging in sexual intercourse without consent, second-degree sexual assault, and assault.
The board of inquiry, announced by the ACT government on Wednesday, must investigate a range of important matters, including why the ACT Victims of Crime Commissioner Heidi Yates attached herself to Brittany Higgins during the investigation of Lehrmann, and in full view of cameras throughout his very public trial. Why didn’t Yates accompany to court a woman who was the victim of a violent rape? What personal support, if any, did Yates offer that woman?
The Australian understands from people experienced in ACT sexual assault cases that they have never seen or heard Yates become involved in other cases in the way she did with Higgins. Many police and lawyers are privately asking whether there are possible political or career reasons that explain why Yates chose to be by the side of Higgins and not the low-profile complainant at the centre of an alleged violent rape trial next door?
When the ACT government announced the board of inquiry into the Higgins/Lehrmann debacle, many people closely involved in it told The Australian the same thing: bring it on, in full, and free from any political interference that has contaminated the matter on so many fronts.
First and foremost, this inquiry must get to bottom of the truly disturbing claims raised by senior AFP officers in charge of the investigation that there was “too much political interference” in DPP Shane Drumgold’s decision to prosecute Lehrmann.
The contamination of legal processes with politics is routine in authoritarian regimes and other tin pot faux democracies. Australia must guard against even one case of this form of corruption. Hence, AFP officers must be invited to explain, with no danger to their careers, what concerned them, and why they made comments and diary notes about “too much political interference”.
The ACT government is keen to look like they are doing something. Yet they have not told us who will undertake this inquiry, nor released formal terms of reference.
The real question is whether the ACT Labor government, so closely aligned with the federal Labor government, can get this right. Can ACT Chief Minister Andrew Barr and ACT Police Minister Shane Rattenbury assure Australians that the administration of justice in the ACT is not infected with politics? That means the inquiry must investigate what role, if any, did members of the ACT government or of the Albanese government (when in opposition) – including Anthony Albanese, Katy Gallagher and Mark Dreyfus – play in whipping up pressure on the DPP to prosecute Lehrmann?
What about former prime minister Scott Morrison and his comments in parliament praising Higgins with no mention of the presumption of innocence?
This inquiry must explore why the DPP chose to prosecute Lehrmann given police concerns that (a) there was not enough evidence to support the charge of sexual assault and (b) a trial would be detrimental to Higgins’ mental health.
The inquiry must investigate whether the DPP, in his decision to prosecute Lehrmann, addressed not just the evidentiary issue but the issue of Higgins’ mental health. After all, when deciding against a second trial, Drumgold mentioned Higgins’ mental health.
“The safety of a complainant in a sexual assault matter must be paramount,” he said.
This inquiry must probe whether the DPP’s public comments when he chose not to proceed with a second trial breached his professional obligations as an officer of the court.
The statement from Lehrmann’s lawyer Steve Whybrow SC on Wednesday subtly alluded to the flip side of police concerns that there was political interference in the DPP’s decision to prosecute Lehrmann. Was there political pressure not to prosecute others?
This board of inquiry must investigate why Lisa Wilkinson – and other media personalities including Jonesy and Amanda on WSFM – were not prosecuted for contempt given the chief justice’s explosive comments about these journalists obliterating the distinction between an allegation and a finding of guilt.
Could it be that #MeToo crusaders have effectively been exempted from the ACT contempt laws? On that note, this inquiry must also investigate whether there is pressure, political or otherwise, not to prosecute Higgins for possible breaches of contempt laws for her speech outside the courtroom when the trial was aborted, or for possible breaches of the listening devices laws given Higgins admitted to recording conversations without consent, and whether she breached any laws by deleting evidence, which she also admitted to.
The proper administration of criminal justice entails due process, a fair trial, the presumption of innocence and the rule of law, meaning the equal and predictable application of laws to all people, regardless of whether they are a plumber or a politician, a clergyman or a celebrity.
The Lehrmann debacle places this country at a set of legal, political, and social crossroads. If there was political interference in the decision to prosecute Lehrmann and in decisions not to prosecute others, that must be exposed.
That requires a board of inquiry constituted by serious and independent lawyers who are astute and brave enough to investigate not only the DPP’s allegations against the AFP, but also the motives of a political party to bring down a government at the cost of fair trial, the influence and actions of #MeToo media celebrities who trash the presumption of innocence, the unusual behaviour of the Victims of Crime Commissioner in the ACT during this saga, and troubling questions raised about the conduct of the DPP. Did Drumgold do everything reasonably in his power to ensure that Lehrmann received a fair trial?
If this board of inquiry has narrow terms of reference, is not properly resourced, is not carried out by independent and courageous lawyers, it will only prove that politics has seeped into this legal process too.
Only a robust investigation by this board of inquiry can possibly stem the disturbing tide of trial by media and the contamination of the legal system with politics.
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