“Every person following the Higgins’ saga now knows that the success of our criminal justice system and our continued trust in it depends upon the competent work of police, prosecutors, defence lawyers, victims support, judges and jurors,” says “CityNews” legal columnist and former barrister HUGH SELBY. So why are we still talking about it?

JUST over a week ago a large man-made dam in occupied Ukraine failed. Water swept down upon tens of thousands of people. Apart from their homes and livelihoods there is catastrophic environmental damage.

A dam that sustained a society has now wreaked havoc upon it.

Why the dam wall failed is hotly debated. It may be quite a while before we know the truth, as distinct from the competing allegations and theories.

I acknowledge that to put the fate of tens of thousands alongside the fates of two former parliamentary political staffers is, at first sight, horribly unbalanced.

But I am not writing this article because of a concern about those two young people. The point of this article is that when we ignore, or allow some among us to attack key principles for our society then the damage wrought upon all of us can be severe. The presumption of innocence, the cornerstone of our criminal justice system, is put in jeopardy.

Our criminal justice system, like that dam wall, is man-made. Much intelligent thought and years of effort have gone into, first building it and then managing its performance to keep us all safe.

Despite all those efforts our system is not perfect.  It is not indestructible. It can fail. It can be sabotaged both from inside and outside.

Every person following the Higgins’ saga now knows that the success of our criminal justice system and our continued trust in it depends upon the competent work of police, prosecutors, defence lawyers, victims support, judges and jurors.

As explained in an earlier article the “atmospherics” must never be ignored at every stage of the criminal justice process.

“Fair trials” and “fair outcomes” depend upon creating and sustaining a public opinion that is sufficiently open minded to permit all those actors to go about their job free of pressures from popular movements and “causes”.

There are many complaints of sexual assault.  A few of these cases attract media attention. Most don’t.

What has driven the high, sustained public interest in the Higgins’ saga?

There is no single answer. To keep the dam and its wall safe, this article sets out some factors, leaving it to you, the reader, to order them as you will.

The complainant

The complainant came on to the stage with an unusual set of circumstances. The claimed rape occurred in our national Parliament House. Both parties worked there for a senior government minister.

There was a delay in making the complaint to police. That delay entailed that independent scientific evidence, if it had existed, no longer did.  There was an active gossip campaign denigrating the alleged wrongdoer.

The police investigation was hampered by “on-off” co-operation from the complainant.  That same investigation was helped by the involvement of the ACT Victims of Crime Commissioner.

There was way more than usual “media interest” in the case, reflecting the “who” and the “where”.  It also reflected the media skills of Ms Higgins’ close friend.

A financially rewarding book deal was signed.

There was a “tell-all” TV interview on Channel 10’s “The Project”.  Presenter Lisa Wilkinson gained a Logie for that interview.

The complainant gave her evidence from the witness box at the trial. That was brave as she could have given it from a remote room when every word would have been audio visually recorded. Had she done that then for any retrial that audio visual record would have been her evidence. That is, no second trial ordeal for her. Because she gave it from the witness box she would have to give “live” evidence again.

The claimed reason for no second trial was that Ms Higgins’ mental health could not deal with giving evidence at a second trial.

This must mean that reports that Ms Higgins volunteered to assist the media defending defamation actions by the former accused, by giving evidence at any future civil hearing, were wrong. That seems at odds with the stated defamation defence being their being able to show the “truth of the allegation”.

The senior government minister for whom Ms Higgins briefly worked settled a defamation claim by Ms Higgins with a payout good enough to buy a family car.

The government, in the spirit of Christmas, gave Ms Higgins an allegedly huge payout, kept it confidential, and has refused all requests (as has Ms Higgins) to share with us the amount and the justification for it. Why?

The political playground

Recently, thanks to a lengthy, well-written article in the “Weekend Australian”, we learned that chief of staff Fiona Brown is a true victim of this saga. She did no wrong but she was the “fall guy”. Her responses to the claimed incident seem beyond criticism.  A fulsome, written “thank you” received from the complainant seems to have been overlooked.

Allegations and counter allegations between the two major political parties as to who had been told what and when about the claimed rape have become a focus for certain media.

Perhaps because there is no clear winner in that game “peace has broken out in the melee” and both sides of politics are united in asking the police to find who it was who shared the complainant’s text messages with the gleeful media. Less political attention is being paid to who gave Channel 10’s “The Project” preparation audio-visual to other media.

Wouldn’t it be better if precious police time was given to solving more pressing matters?

Whipping up a storm

The role of mainstream media in sustaining the energy of this saga is obvious.

There have been negative aspects, such as “The Project” interview of Ms Higgins before the trial, having to delay the trial following Ms Wilkinson’s Logie speech, and putting pressure on police to charge.

The current “stir the political pot of who misled Parliament” seems to be a diversion from the main game.

There have also been positive aspects, such as sharing with us the Parliament House security footage of the two “sober enough” work colleagues entering late at night, the reporting of the criminal trial, most of the reporting of the Sofronoff Inquiry into the ACT criminal justice system, and the recent telling of chief of staff Ms Brown’s sad story.

Ms Brown’s account is not compatible with the complainant’s account.

It is too early to assess how the near indiscriminate positive affirmation by the media of those who claim to be victims of sexual assault should be characterised.

Wider awareness of the obstacles faced by honest complainants is, obviously, a good thing.

Equally, recognising that not all those who complain do so with a pure heart and honest recollection is a good thing.

The difficulty is how to distinguish the credible true complaint from the credible false complaint.

Legal processes

Somehow, the above matters tilted our legal system off course.

A direction was given by a well-intentioned senior police officer that a charge should be laid. That is contrary to over a century of law that the discretion to charge or not to charge lies with the individual constable. That problem was “solved” by another senior officer signing the initiating charge.

During the Sofronoff Inquiry Commissioner Walter Sofronoff KC asked of the rows of advocates whether any one of them would be submitting that the police should not have charged. Silence.

We, the public, are now better informed than we and they were when the question was asked. Possibly, but only possibly, there might now be a different answer to that question.

The ACT Director of Prosecutions Shane Drumgold made decisions pretrial, at trial and post-trial that fly in the face of the usual.

The director made written allegations. He demanded an inquiry. It did not go as he anticipated.

The Victims of Crime Commissioner Heidi Yates showed herself to be a skilled, passionate supporter of complainants.  However, she seemed oblivious to the need to temper that public support so that there was no interference with the accused’s right to a fair trial.

During the Sofronoff Inquiry the former accused, Bruce Lehrmann, recounted to media a pretrial conversation with an ACT Legal Aid officer. On his account, ACT Legal Aid had lost its way by asserting a right to direct defence counsel as to how to cross-examine a complainant in a sexual assault matter.

As well, still on his account, they blacklisted his advocate, Steven Whybrow SC, who prepared and ran his defence at trial for no fee (as did the instructing solicitor).

Given that the Sofronoff Inquiry was into the ACT criminal justice system, and as Legal Aid is a key part of that system, it was obvious that the inquiry terms of reference needed to add in Legal Aid.

That didn’t happen.  Attorney-General Shane Rattenbury stayed silent, as did the barristers’ and solicitors’ professional associations.

What does it mean?

There has been so much razzmatazz. It has come at a cost to individuals, to our criminal justice system’s reputation, and to us.

The Dambuster flight crews of World War II were heroes, fighting tyranny. The same cannot be said for those who have damaged the strong wall we maintain for a credible justice system: police who are able to test hypotheses, a prosecution service that maintains detachment no matter what, a media that knows and follows the boundaries to ensure a fair trial, a Legal Aid body that unequivocally commits to upholding the rights of accused, and support for the presumption of innocence to which each and every one of us is entitled.

The effects of the damage to that wall will only be known after the event. Pity the occupied Ukrainians. Too late for them, still time for us.

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

Best give the millions back, Brittany

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