Me-too justice

Presumption of innocence presumably dead

Features Australia

Maurice Newman

Getty Images

Maurice Newman

7 January 2023

9:00 AM

The year 2022 may be behind us but the appalling circumstances surrounding the Brittany Higgins affair remain unresolved. From the moment news of the alleged rape of Ms Higgins became public, the presumption of innocence was sacrificed on the ‘believe-all-women’ altar. That the allegation was announced twelve months out from a federal election, that the alleged rape took place in the Parliament House office of a Liberal party minister and that Ms Higgins and the accused were Liberal staffers, provided a golden opportunity for base political instincts to override any statutory obligation or sense of duty.

No doubt conscious of heightened political and media interest and, seeking maximum publicity, two years after the alleged event occurred, Ms Higgins and her media-savvy boyfriend, David Sharaz, timed an interview with Network 10 broadcaster, Lisa Wilkinson, to coincide with the sitting of federal parliament. They got the response they wanted.

Then shadow attorney-general Mark Dreyfus, now the nation’s chief law officer, was quick to see political mileage. In his adjournment speech, he praised ‘demonstrations across our nation, (where) tens of thousands of women and their supporters marched and spoke for justice’. He referenced some of the placards, saying ‘on one, were the stark words, “Stop raping women,” on another, “Enough is enough”’.

‘It’s very clear the Prime Minister has made looking after Liberal party mates his main focus, – not looking after women…’.

The accused was plainly guilty, a conclusion endorsed by 2021 Australian of the Year, Grace Tame, who declared Brittany Higgins a ‘survivor’.

And if that wasn’t proof enough, former prime minister Scott Morrison, demonstrating his contempt for the presumption of innocence, brought the full authority of his office to bear by offering a fulsome apology to the alleged victim saying, ‘I am sorry. We are sorry. I am sorry to Ms Higgins for the terrible things that took place here’.

Despite the popular ‘guilty’ narrative, the federal police advised the director of public prosecutions there was insufficient evidence to prosecute. DPP Shane Drumgold ignored this advice, arguing, ‘there is too much political interference’. So a trial ensued. Then, with the criminal case in full swing, Lisa Wilkinson felt the need to maintain the lynch-mob rage by using an address at a Logie awards night to praise Brittany Higgins. So contemptuous of the court proceedings was she that ACT Supreme Court Chief Justice Lucy McCallum, ‘regrettably, and with gritted teeth’, postponed the trial by several months saying, ‘What concerns me most… is that the distinction between an allegation and a finding of guilt has been completely obliterated…. The implicit premise of (Wilkinson’s speech) is to celebrate the truthfulness of the story she exposed.’

After the trial was aborted and before the re-trial commenced, Mr Drumgold announced that he would no longer prosecute the case, even though he clung to his belief that there was a reasonable chance of conviction, as he had to weigh the effects of a second trial on Ms Higgins’s poor mental health. Presumably, in forgoing a conviction he took into consideration the risks to other vulnerable women.

And while the DPP judged Ms Higgins not well enough to continue with the prosecution, five days after abandoning the case Higgins declared she was willing to appear as a witness ‘to defend the truth’ in any defamation case brought by the defendant.

This calls DPP Drumgold’s  judgement further into question and whether he himself was politically influenced.

In an address to graduates at the University of Canberra in April 2021, he wore his heart on his sleeve when he referred to Aboriginal people as ‘currently amongst the most imprisoned and disadvantaged people on the face of the planet’. Perhaps, given his own underprivileged background, he instinctively aligns with alleged victims regardless of evidence.

And in dropping the case, was he aware that nine days later, the Albanese government, having eschewed proper mediation procedures, would settle Ms Higgins’s claims against the Commonwealth and former ministers Linda Reynolds and Michaelia Cash for a rumoured $3 million?

Incredibly, in consideration for taxpayers meeting their legal expenses, neither former minister attended the mediation, notwithstanding both hotly contest Higgins’s claims of mistreatment while in their employ. And, disregarding taxpayers’ right to know, at Ms Higgins’s request, settlement details remain confidential.

Where is the outrage? The opposition remains conspicuously silent. So too most of the media and the legal profession.

So, while the accuser pockets millions of dollars, the accused remains presumed guilty by the federal parliament and the media and, is denied the opportunity to clear his name in court. What of his future?

To manage political fallout, the ACT government will hold an inquiry which will investigate the conduct of the prosecution, the defence and police, to ‘ensure the ACT justice system was robust and fair after both parties made allegations’.

Meanwhile, the Australian Federal Police Association accuses DPP Drumgold of attempting to ‘smear’ the AFP while the DPP alleges that police engaged in ‘a very clear campaign’ to pressure him not to prosecute. Without the case continuing, we will never know whether the DPP’s initial decision to proceed was sound.

No doubt the inquiry will find that the ACT justice system is fair and robust. The terms of reference will ensure that. But it will shine little light on the true state of justice in the ACT or, for that matter, Australia. Contempt for the constitution and human rights during the pandemic and the trials of Cardinal George Pell are more reliable indicators.

Indeed, the cynical forces behind party and identity politics which captured the Brittany Higgins case, clearly demonstrate that modern day authoritarians, guided by their  ideological preferences, are prepared to bastardise the faithful application of objective laws.

Which begs the question, is the political-legal-media class now so captured that it is prepared to idly watch as the application of the rule of law and the pursuit of justice without fear or favour – the cornerstone of democracy – are effectively consigned to the dustbin of history?

As we enter 2023, if silence is any guide, the answer is ‘yes’.

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Published by Nelle

I am interested in writing short stories for my pleasure and my family's but although I have published four family books I will not go down that path again but still want what I write out there so I will see how this goes

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