In summarising the latest events around the failed Lehrmann trial and its aftermath, “CityNews” legal columnist HUGH SELBY sees more sparks in this smouldering bonfire of the vanities. 

IT began with a boozy night out by some staffers from the  Hill. Two of them, less than sober, betook themselves back to the Hill. 

What, if anything, of a sexual character took place between them is subject to incompatible stories: nothing versus rape of a defenceless damsel.

Said damsel did not make use of the sexual assault centre that was mere minutes away. She did not quickly make a complaint to police. The result was a lack of evidence to support her later complaint.

If any of us complain to police about a theft, an assault at a bar, a domestic assault, or being conned, then the police need evidence. Without evidence there is no substantiation of our complaint and so no charge, and no hearing in court.

Police investigators, and indeed all dispassionate investigators, learn early that the truth as perceived by a complainant is not a substitute for evidence. 

A person may, for example, sincerely and honestly believe that they have been a victim of a theft. They report it. Then the goods are found where they left them. No crime, but a strong belief.

A person may have been sexually assaulted, they may not have been, they may fantasise – but each of those are just assertions. They are not evidence.

The necessity to be respectful to a complainant, but not indulging the complainant’s expectation of being assessed as “truthful”, guides good investigations and good prosecutions.

The police told our DPP that there was insufficient evidence. The case should have ended there.

The DPP takes a case to trial when there is a sufficiency of evidence and it is in the public interest to do so. That sufficiency was lacking.

Nevertheless, after various delays a trial took place.

The complainant, who could have given her evidence from a remote room (when it would have been audio-visually recorded), chose to give her evidence in the courtroom. 

The jurors were told some 17 times by the trial judge to pay regard to only the evidence that was presented to them in the courtroom. 

The trial judge was scrupulously following the law. It’s not her fault that the law is out of touch with our daily reality of every juror, their family and acquaintances being subject to a daily barrage of news and readily accessible information on a phone, tablet, or laptop. 

That barrage reflects what each juror’s family, friends and colleagues might be raising with a juror at any time between 4pm (when the court rises) and 10am (when it starts). And then there is the free-for-all weekend at the shops, at sport, at the barbecue and so on.

Before the trial judge discharged the jurors, because of an inevitable failure to follow instructions, the jury were deadlocked. That means that at least one of them would not follow the others. Of course, the division could range all the way from 11 to 1, to 6 to 6. We don’t know and we will never know. What we do know is the complainant’s account (no matter what she asserted) was short of evidence to persuade a dozen from among us to convict.

The DPP chose to prosecute. We don’t know why. The DPP chose to make public statements in which he departed from being a dispassionate advocate in court to being a character referee for the complainant. That was ill-advised. Thereafter, it is reported that he has complained in writing about the conduct of the police as being “pro defence”. If he has made such a complaint then that too was ill advised. 

We outsiders might reasonably interpret “pro defence” as meaning that experienced police properly told the DPP that there was an insufficiency of evidence and were proved right, with him being proved wrong.

The DPP withdrew these proceedings after finding that the complainant would have to give evidence again. The DPP told us that there was expert advice that having to give evidence posed a significant threat to the complainant’s mental health. This was a “longer-term” threat, so it was not simply a matter of pushing the trial back from February to a later date. It was reported that the complainant was receiving treatment.

Today it is reported that following a mediation – presumably this week – the complainant has settled her legal claims against various other parties. She, the complainant, asked that the terms not be disclosed.

We should all rejoice that the complainant has made such a strong recovery, and so quickly.

In October it was widely reported that the complainant had signed a book deal for a hefty sum in advance. 

Why the secrecy in the wrap up of the criminal proceedings, and secrecy on the terms that settled the complainant’s civil litigation claims?

Could it be that some players assumed that the complainant would become a celebrated victim? 

There will surely be more sparks from this bonfire of the vanities.

Hugh Selby is a recently retired barrister who enjoyed appearing in criminal jury trials and teaching about them.

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