Higgins case finally over

The costs for the accused are immense

Great news. The Brittany Higgins case is over. The ACT Director of Public Prosecutions, Shane Drumgold announced yesterday that the sexual assault charge against Bruce Lehrmann will be dropped, because of an "unacceptable risk to the life of the complainant".

In an extraordinary statement to the press, Drumgold claimed the decision was made after he received compelling medical evidence of mental health risks to Higgins of continuing with the prosecution. Higgins is now apparently receiving care in a hospital in Queensland. Drumgold commended Higgins for her “bravery, grace, and dignity.”

But finally, the truth is being told. Janet Albrechtsen and Stephen Rice, in the Weekend Australian today, revealed that police investigators advised the DPP that there wasn’t enough evidence to run the case and they had serious concerns about Higgins’ mental health and whether she could cope with a trial. 

The newspaper quoted evidence from an executive briefing last year, where the ACT Police Manager of Criminal Investigations, Detective Superintendent Scott Moller advised that investigators “have serious concerns in relation to the strength and reliability of [Ms Higgins’] evidence but also, more importantly, her mental health and how any future ­prosecution may affect her ­wellbeing.”

The newspaper quoted diary notes made by Moller, which said that their advice was ignored by Drumgold because “there is too much political interference.”

The article mentions that the executive briefing listed a series of concerns mentioned by senior police, including that Ms Higgins had ­repeatedly refused to provide her original mobile phone; had ­deliberately deleted messages from a second phone; and had lied about seeking medical attention after the incident. Some became issues at the trial.

The documents obtained by The Weekend Australian also ­reveal that Higgins joked in text messages about crying on The Project to deflect criticism in the media, and, six weeks before the alleged rape, wanting a political sex scandal: 

“A sex scandal the party can be proud of. Another Barnaby but without the baby haha,” Higgins wrote. None of this was revealed in the trial.

In a separate opinion piece, Albrechtsen says Drumgold’s decision to drop the case “is too late and too little.”

“In that order. Too late because the DPP should have decided not to prosecute Lehrmann in the first place. Too little because Drumgold should have made that earlier decision for two reasons: the inconsistency and lack of evidence, and the mental health of Higgins.”

She goes on: “The AFP material and the way the case proceeded raise serious questions about the DPP’s judgment…. his aim seemed to be to protect Higgins from further public scrutiny, which invariably includes criticism. Drumgold’s focus on the bravery of Higgins, when there has been no finding of guilt, is especially troubling. Higgins’s allegation remains just that – an allegation.”

Albrechtsen suggests that rather than seeking to protect Higgins from public scrutiny, Drumgold “should now be much more concerned about the way in which this untested allegation was initially and subsequently publicised, the media circus around it and its impact on whether Lehrmann could receive a fair trial. If Drumgold is not now looking seriously at contempt charges for those involved, we should ask more probing questions of the DPP’s judgment.”

Speaking of that judgment, arguably Higgins’ current mental crisis is a consequence of Drumgold’s decision to ignore the professional advice given to him and push ahead with the prosecution.

The feminist editors now in charge of The Australian cannot be very happy with Albrechtsen’s revelations, given they were very much part of the media circus lionizing Higgins. But naturally, the rest of mainstream media will ignore this evidence and run with Drumgold’s line that the trial destroyed Higgin’s mental health.

The Australian's excellent Legal Affairs Editor Chris Merritt was on Sky News yesterday morning, expressing outrage at the way the case has been handled, with Bruce Lehrmann now being denied a right to a fair trial and any chance of an acquittal which would clear his name. He said that the DPP’s decision is a “catastrophe” for the justice system since this means the case will remain unresolved forever. “His name has been tainted… and that [taint] will never be removed. He’s been denied a right to a fair trial,” Merritt said.

Merritt was also scathing about the fact that, in announcing his decision, Drumgold said nothing about the presumption of innocence but instead stated his view that there remained “reasonable prospects of successful conviction in the case.”  As Merritt points out, this amounts to saying we have a man who is a rapist which the ACT justice system is incapable of bringing to trial. “There’s something terribly, terribly wrong in the ACT justice system,” said Merritt. Listen to his powerful interview and watch the amusing bleating from the female journalist arguing poor Brittany was the one who had suffered most.  

Other lawyers have expressed similar concerns. Here’s Sydney barrister Gray Connolly on Twitter:

We are bound to learn more about all this now that the case has been dropped and we can start to hear the other side of the story. For the last few years, Brittany Higgins’ view of events has dominated the media, with the prosecuting authority and the court failing dismally to rein in the constant promotion of her as a victim, which undermined her accused’s presumption of innocence. Lehrmann and his legal team have behaved with decorum, never speaking out inappropriately or using the media to promote their side of the story.

But now the gloves are off, and Bruce Lehrmann can expose what has gone on behind the scenes. Prominent members of our media who have repeatedly defamed him over the last few years would do well to ponder whether he will use the civil courts to seek compensation for the damage they have caused him.

Virtually all our major media companies have promoted Higgins as a celebrity victim, giving her a constant platform to present her story - foolishly promoting her tearful speech when the mistrial was called, even after it was announced that the speech had been referred to the Australian Federal Police and to the prosecutor as a possible contempt of court.

Merritt is right to be concerned about the future of our criminal justice system. The DPP’s latest spray has absolutely set us up for a major assault on our criminal justice system, with activists using the Higgins mental health crisis to claim we need more protection for victims, perhaps even a separate system to reduce stress on the complainants and ensure more convictions. Here’s SBS calling for “specialised sexual assault courts.” Sound familiar? Oh yes, kangaroo courts may well be heading our way, not just on our campuses but across the entire country for sexual assault complaints.

Already today there has been an outcry about the impact of this horrendous trial on poor Brittany.

Never a word, of course about the impact on Bruce Lehrmann, and his bravery and dignity in dealing with the assaults on his reputation over the last few years and during the trial. Never one word from our media about the impact on his mental health.

It’s very telling to look at the consequences Higgins’ accusations have had for both these young people.

For Higgins they brought fame, fortune, and immense public sympathy:

•  A $320,000 book contract. 

•  An undisclosed settlement from the Defence Minister for calling her a “lying cow”.

• A position as a visiting fellow at the ANU’s Global Institute for Women’s Leadership, appointed by Julia Gillard.

• Heroic “rape victim” status in mainstream media, featured on the cover of women’s magazines, given a standing ovation by the National Press Club.

• Journalists fighting over her story and winning awards for promoting her version of events.

• Current and previous prime ministers apologizing for her “terrible experiences.” 

• The immense power of the state brought to bear on the resulting court case, with top prosecutors and the ACT victim’s support officer supporting the celebrity witness.

Meanwhile, Lehrmann has faced an endless ordeal:

• He’s unemployed and unemployable. Lehrmann had moved onto a new job before being publicly named as the accused rapist but lost that job when a journalist informed his employer about the allegation.

• Constant exposure of his name and face ensure he is recognizable across the country. 

• He faced a major challenge in finding pro bono legal representation for the ongoing legal battles and significant additional expenses therein. 

• There were delays due to ongoing publicity, particularly after Lisa Wilkinson’s intervention.

• The stress of dealing with an ACT jury trial, requiring a unanimous verdict, in one of the most woke parts of Australia.

• The ACT government introducing laws to try stop Higgins from being cross-examined in the retrial.

Lehrmann, smart, well-educated, once set for a successful career, has spent years in limbo, broke, isolated, with few friends and no prospects. He must feel enormous relief that the trial is at an end, but the ordeal, the public shame this young man must bear, is bound to continue. 

I’m pleased to hear efforts are now being made to try to assist him re-establish himself. Contact me if you are in a position to help and would like to hear more.