Chris Mitchell The Australian December 11, 2022
Activists used to campaign against conservative federal and state governments that denied citizens the right to the presumption of innocence. Reflect on the way the late Queensland premier, Sir Joh Bjelke-Petersen, used police to arrest protesters against the 1971 South African Springbok rugby union tour in Brisbane. Former ALP premier Peter Beattie was assaulted and taken into custody at a protest outside the Tower Mill Motel where the Springboks were staying. Three days later, a young lawyer, Terry O’Gorman – who went on to become the long-time president of the Australian Council for Civil Liberties – joined the protests. O’Gorman, Beattie and civil libertarians across the nation fought bitterly to shut down Special Branch operations that were used in several states to keep tabs on public protests, especially against the Vietnam War.
Now journalists wanting improvements in the way sexual assault cases are handled in court are, in effect, campaigning against the right to the presumption of innocence. Whether in the trial and conviction of Cardinal George Pell on charges rejected by the High Court on April 7, 2020, or the failed charges against former Liberal federal staffer Bruce Lehrmann in the ACT, there is evidence some prosecutors – and in Victoria, police too – are shifting the burden of proof so complainants are automatically believed.
Victorian Premier Dan Andrews posted on Twitter on the day the High Court unanimously threw out the Pell verdict: “I make no comment about today’s High Court decision. But I have a message for every single victim and survivor of child sex abuse: I see you. I hear you. I believe you.” Many lawyers, including O’Gorman, saw it as an inappropriate comment for a government leader.
O’Gorman, still vice-president of the Queensland Council for Civil Liberties, understands the public’s concern that victims of sexual assault not be retraumatised by court processes but fears the balance has shifted too far against the presumption of innocence.
“Remember Chief Justice Lucy McCallum (in the ACT Supreme Court) went out of her way at the end of the Bruce Lehrmann trial to say how important the role of defence counsel is in this sort of matter. And she went on to compliment the prosecutor and defence for the manner in which they had conducted the trial. But the fact the Chief Justice felt she needed to explain to the public the important role of defence counsel shows how far the pendulum has swung,” O’Gorman said.
The trial was aborted on October 26 over juror misconduct. The prosecution dropped its case on December 2 after medical evidence about the trial’s impact on the complainant, former Liberal staffer Brittany Higgins, who claimed she was raped in the office of minister Linda Reynolds in Canberra in March 2019.
Much has been written about the tragic effects the failure of the court process has had, and will continue to have, on the lives of Higgins and Lehrmann, who has always maintained his innocence and last week hired prominent Sydney defamation lawyer Mark O’Brien. On Twitter, many senior left-wing journalists who should know better continue to defame Lehrmann. Higgins said last Wednesday she would be prepared to give evidence in a civil action by Lehrmann.
No journalist knows what really happened that night in Reynolds’s office after an afternoon and night of drinking. But activist journalists and lawyers have been happy to trash Lehrmann’s right to the presumption of innocence.
A piece in The Sydney Morning Herald on December 5 by barrister Steve Boland got the balance right: “The events surrounding the criminal allegations made by Brittany Higgins against Bruce Lehrmann are a lamentable example of what happens to the justice system when the principles of prudence, discretion and sobriety of judgment are set aside in favour of publicity, politics and rank ideology.”
Boland said such trials “are invariably tried in conditions of anonymity, which is a statutory right afforded to the complainant”. Boland criticised politicians from both sides of the house and journalists for ill-informed comments on the case and a lack of “fealty … to the time-honoured principles on which our society was founded”.
Back to O’Gorman: “Far too many people on the left are saying when it comes to sexual assault cases the normal rules about the presumption of innocence don’t matter. Well, sorry, these rules matter in every case and they particularly matter in sexual assault cases.
“In the UK now police are trained to tell complainants in sexual assault matters that they believe them. It’s this sort of presumption of guilt that brings about miscarriages of justice. Look at Cliff Richard. This was a big settlement. Why? Because the BBC and other media just presumed guilt because there was a police raid on his house. As Richard said in a TV interview, ‘I got some money out of it but I’ll never get my reputation back’.”
Sir Cliff Richard won damages of £210,000 and was awarded legal costs of £2m in 2018 and 2019 respectively. The BBC apologised after hiring a helicopter to film the police raid on Richard’s home in 2014. Richard had denied a claim he sexually assaulted a boy after a Billy Graham rally in 1985. No charges were ever laid. Richard also settled with Yorkshire police for £400,000 after they tipped off the BBC.
Social media has been just as vile about Higgins and her female supporters as it has been about Lehrmann. One female journalist who has also received more than her fair share of social media abuse is Janet Albrechtsen, a columnist for this newspaper and herself a lawyer.
O’Gorman says he tells his left-wing friends they should read Albrechtsen: “What Janet Albrechtsen has written about the rights of the accused is correct. Some people on the left just won’t read her. I say to them, you have to read people you don’t agree with because it might actually cause you to change your own views.”
Albrechtsen wrote after the jury in the Lehrmann trial was dismissed in October: “Thursday’s mistrial is a fitting end to the media trial that preceded court proceedings. How could anyone expect a jury to be free from the enveloping, swirling, at times wild media forces, especially on social media, that applauded Higgins’s story, commended her bravery, celebrated her credibility and simultaneously ran untested stories about Bruce Lehrmann?”
Albrechtsen was even criticised for publishing on December 3 leaked police memos suggesting the Australian Federal Police was concerned some evidence by Higgins was contradictory, recommended against prosecution and felt it was under political pressure to charge Lehrmann.
The spectacle of journalists who have lived off political, police and legal leaks all their lives condemning on social media the publication of a very relevant police leak took hypocrisy to new levels. There was no such criticism of The Guardian for publishing a letter from ACT Director of Public Prosecutions Shane Drumgold to the territory’s chief police officer, Neil Gaughan, last Thursday.
Drumgold accused police investigators of colluding with Lehrmann’s defence team and bullying Higgins. Drumgold clearly sees himself as representing the interests of the complainant rather than the Crown.
It’s exactly what O’Gorman is talking about.
1/ The prosecution dropped its case against Bruce Lehrmann on December 2 after medical evidence about the trial’s impact on the complainant, former Liberal staffer Brittany Higgins. Picture: NCA NewsWire / Gary Ramage