Given what we know now compared to last year, legal affairs columnist HUGH SELBY says there’s an argument of “unjust enrichment” and that Brittany Higgins should give the taxpayers’ money back. 

THANKS to the mainstream media coverage of the police investigation, the trial, the decision to not have a second trial, the Sofronoff Inquiry and last week’s torrent of information, we are well placed to look both back and forward at the Brittany Higgins saga.

The looking back is to imagine what would have happened if the decision last year had been to have a second trial in which Bruce Lehrmann was the accused.  This article aims to help you to make up your mind about how that would have ended.

The looking forward is to imagine how as honest, informed advisers to government this week, we would set out the next steps to deal with whatever payout of taxpayer funds was made to Ms Higgins. Leaving aside information kept from us (but possibly known to some police, lawyers, and media) does the available information entail that Ms Higgins should keep or repay the settlement monies that she received?

A second trial

Remember, the prosecution must prove its case against the accused beyond a reasonable doubt.

It is not the job of the defence to prove anything in a case such as this one.

Experienced, competent police, prosecutors, and defence advocates tell their witnesses to stay well clear of media. Why? Because it creates a record that can find its way before the trial fact finder, be that 12 jurors or a judge sitting alone.

If there is such a record, then a skilled prosecutor, properly using the tests to go to trial or not, must consider whether the media reports can be dealt with in chief by “confess and avoid”, along with how well or badly the witness is likely to fare when cross-examined by the defence advocate.  There’s an explanation of “confess and avoid” here.

A skilled defence advocate, armed with all the material now shared with us, must decide how to organise it into topics, in what order to present it, and with what tone and pace as they cross-examine.

It’s the answers, not the questions, that are the evidence for the fact finder. However, it is both the question content and the style of the question delivery that build up a feeling in the audience, as surely as film music evokes our emotions as we watch a film.

Popular films reflect popular tastes and interests. Apart from romance it’s heroes and villains that draw us in. A criminal trial doesn’t have the energy of “Fast and Furious” or the “how-close-to-death” moments of “sniper” drama.

However, as an audience – be that as jurors or watchers in the public gallery – we are watching a high-stakes fight between a claimed heroine or hero and a possible villain. Who will wear the victim label when it’s all over?

Each of them is helped by a black-robed knight.  The referee (judge), also black robed, sits above the fray.

Every person in that courtroom, including us, brings popular sentiment with them to the fight. That sentiment is the background musical score to whatever are the extra tracks played in the trial.

The background score in these trials is loud and somewhat overplayed these days. There is a catchy, hard-to-mute insistence that all complainants are victims, that all accused are villains. To victims and villains let us add “V” for vengeance.

That score can play well in public, but it can be like a scratch on a vinyl record (pre-digital technology) – ruining everything else that needs to be heard in a courtroom.

The defence team for a second trial now has available to them a rather large selection of materials (larger than in 2022) from which to fashion its cross examination.

Here, lacking sufficient information, I ignore any possibilities that might arise from the timing of publicity, any book deals, any assistance from an experienced media person and health issues for the complainant. We are restricted to the following, widely published information with which to build their possible cross-examination:

Complainant’s background (phase 1):  a well-educated adult; well informed as to how to respond to unwanted sex: aware of 24/7 help from sexual assault centres, rape crisis service, police, victims services; aware of a “victim centric” approach  – all instantly available – all of them available whether or not the person goes forward with civil and/or criminal proceedings.

The cross examination will focus upon showing the audience that, despite all that knowledge, the complainant chose not to follow it. Moreover, it will bring out that a well-educated complainant would want to make immediate use of these confidential services to prevent an unwanted pregnancy or any sexually transmitted disease.

Complainant’s background (phase 2): a well-educated adult; well-informed as to the need to preserve evidence, especially where there is no other evidence.

The cross examination will focus upon the failure to go promptly to the nearby sexual assault centre where evidence could have been collected; the absence of any scientific evidence that would support the claims if quickly collected – referring to her body, her clothes, the sofa in the office, and possibly phone records.

Presentation of both parties:  were either he or she drunk?; is there any evidence that he plied her with drinks or spiked her drink?

The cross examiner will remind everyone of the early assertions that both were drunk and that he plied her with alcohol. It will then show the video record (shown on the Channel 7 interview with Mr Lehrmann) that shows neither of them to be unsteady, and she’s well able to take off, put her shoes back on and walk.

The cross examination will also go to his bank records to show that he didn’t spend much on drinks. She will be shown those records and confronted with the gap between her earlier statement/s and what these records reveal. [Whether and when these records become evidence depends on other issues that we can ignore here.]

The cross examination will draw out that as she was not drunk/hungover there was no impediment to her seeking out security staff asap and making a complaint.

The cross examiner will loop back to the failure to go to the sexual assault centre and then build on that. As she was not drunk/hungover there was no impediment to her going to the nearby hospital sexual assault centre – not necessarily to allege rape – but to take proper precautions against pregnancy and any sexually transmitted disease, which she would do if sex had occurred. That would be so whether such sex was consensual or not.

Then the cross examiner can do a dance. Not being drunk she could and should have carefully secured her clothes for later evidence assessment; not being drunk she would want to carefully keep her phone history; not being drunk, and invested in women’s rights, she would want to involve the work management team – namely the politician she served, and the chief of staff – both of whom are women.

Some will say that she was in fear of losing her job.  That would have come out in her examination-in-chief by the prosecutor. It will now be taken apart.

That happens with the coup de grace, wholly in sorrow, never in anger.  It would take Ms Fiona Brown’s account (shared in great detail with us this past weekend) that the prosecution would have to call as evidence in their case. Let us assume that Ms Brown’s account is persuasive. Then, why did you lie about the chief of staff? Why did you lie about a person who went out of her way to help you?

It’s up to readers to decide what all this means in terms of any doubt.

Negotiated monetary settlement

For undisclosed reasons the federal government negotiated a financial settlement with the complainant shortly before Christmas.

There have been repeated media claims that the sum was around $3 million dollars.  The complainant is reported to have said it was less.

Attempts to have either party come clean as to how much was paid and why have failed.  There’s  further background information here.

Ms Brown’s account (in the “Weekend Australian”), coupled with material shown on Channel 7’s interview with Mr Lehrmann, call into question any factual basis for a payout.

Noting again that there may be compelling material not shared with the public, there is a need for we taxpayers to be assured that the bases leading to that payment have not been upended by the recent revelations.

If the facts, as known last year, have been upended, then the complainant and the government must consider whether all or any part of the payment would now be viewed as “unjust enrichment”.

If so, the complainant had best pay it back.

Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.

When the presumption of innocence is put in jeopardy

Why we have a right to know how much Higgins was paid