Brittany Higgins trial shows that legal system is not fit for purpose
7 December 2022
Everyone is aware that the Brittany Higgins trial was abandoned as some material was found in the jury room which showed that a juror had researched information on false memories. Jurors are specifically not allowed to look at material outside the courtroom, presumably so that their judgement can only be based on information from that source.
The ACT Director of Public Prosecutions was going to have a re-trial with a new jury, but the trial was abandoned because of the state of Brittany Higgins’ mental health.
I had spoken to some barristers who were of the opinion that the prosecution should never have been attempted because she could never win because no one would be convicted when it was one person’s word against another. This was demonstrated in the High Court decision when Cardinal Pell was accused of sexually molesting two boys, one of whom had suicided. It was the surviving boy, (now man) v Pell, so Pell was acquitted.
I spoke to a retired prosecutor who disagreed with this. He said that the accused, Bruce Lehmann, had been ‘very well advised’. Lehmann stated that there had been no sexual contact; he had merely retrieved some documents and left the building. This meant that there would be no argument over ‘consent’ and he would not have to go in the witness box. My prosecutor said that the circumstantial evidence was that Higgins was found naked and distressed in a foetal position on a couch and it was unlikely that she would have simply taken off her clothes and adopted this position for no reason, so the trial had a reasonable chance.
But because Lehmann was not giving evidence and Higgins had to make the prosecution case, she was the one effectively on trial with a hostile defence barrister.
Unsurprisingly this was very traumatic. Whether she had done enough to convince the jury will never be known as the trial was aborted by the judge. But she was not in any mental state for a retrial, which presumably would have followed the same course.
Her lawyers will apparently sue her employer and she will presumably only have to prove this on the balance of probabilities.
Lehmann plans to sue the media for defamation, and presumably hopes either to repair his reputation or at least recover some settlement monies.
But the obvious conclusion is that if you are raped in Parliament House, it is not worth trying to pursue justice. As my father told me as an adolescent, ‘Avoid the Courts son; you will get law, but you will not get justice’.
Here are some references, with a ‘w’ missing, except for Jacqui Maley’s SMH article.