Prime Minister derails fair trial

New twists in the Brittany Higgins saga

This week’s parliamentary apology to Brittany Higgins was greeted by lawyers everywhere with a gasp of incredulity that our Prime Minister could show such contempt for the laws of this country. 

Now, let’s get this right. Brittany Higgins is not a victim. She achieves that status only after her allegations of sexual assault are proved in court. Right now, she is simply a witness in a rape case to be heard before a jury in June. A rape case where the lawyers for the defence have announced their client is not guilty.

Under our laws, this man is innocent until proven guilty. We are party to UN Human Rights Committee, which clearly states that “public authorities should refrain from prejudging the outcome of a trial by making public statements affirming the guilt of the accused, and that the media should avoid news coverage undermining the presumption of innocence.”

That means public authorities like our Prime Minister who in parliament apologised to Higgins for “the terrible things that took place here,” stating that Parliament House,  which “should have been a place for safety and contribution, turned out to be a nightmare.”

That surely assumes her story is true. The Prime Minister’s language shows strong support for Higgins’ claim that, after drinking herself silly and turning up late at night at Parliament House with a colleague, she later awoke to find herself naked on the Minister’s couch not after a consensual hook-up, but a sexual assault.

What actually happened on the Minister’s couch should be the subject of a proper criminal trial, where a jury would make a determination on the facts.

But now our Prime Minister has blown it. His irresponsible action sets the scene for defence lawyers to apply for a permanent stay, where the case would not proceed because the defendant is deemed unable to receive a fair hearing. It’s very rare that a court agrees to such a move and it would do nothing to clear the reputation of this young man who has already been publicly named and shamed by our biased, irresponsible media.

The more likely option is that the jury will be given directions to disregard the prejudicial words of our Prime Minister. Think about that. A jury of ordinary men and women will be told to ignore anything they have heard in the media or elsewhere. How could a jury in the national capital, in the Territory’s Supreme Court, possibly forget what was said across the lake in the National Parliament by the most powerful man in the country? It is simply inconceivable that the accused will be given a fair trial in this case.

Yesterday, John Korn, the lawyer for the accused, described the Prime Minister’s apology as an “absolute disgrace”. He was quoted saying: “He has no authority from anywhere or anybody to make that apology. He has abrogated and ignored the presumption of innocence. He’s ignored and disrespected the function of the courts and has no respect for the rule of law.”

In the ACT there’s at present no possibility of applying for a judge-only trial. Chris Merritt  pointed out in The Australian earlier this year that there have been cases where the court has determined that the adverse publicity so prejudices the case against the accused that it justifies a judge alone trial. This was what happened in 2019 when former politicians Eddie Obeid and Ian MacDonald were to face trial after years of being referred to publicly as “corrupt” and “disgraced”. As Merritt has explained, in that case, the NSW Supreme Court’s Justice Elizabeth Fullerton ordered a judge only trial, reprimanding both Morrison and Berejiklian for public comments about the case. Fullerton also singled out in what she called the “journalist frenzy” tweets about Obeid from Kate McClymont, the SMH investigatory journalist, one month before the trial. Here’s Merritt on Skye News last night.

Meanwhile, with the Higgins case now looming, the outrageous journalist frenzy is in full flight. It is reprehensible that our National Press Club invited Higgins to join Grace Tame speaking as “advocates for survivors of sexual assault.” The spectacle which followed was illuminating. Here were hundreds of our supposedly leading journalists, mainly female, wildly applauding Higgins, this key witness in a critical rape case, even before she spoke. Here’s how she started: “I was raped on a couch in what I thought was the safest and most secure building in Australia. In a workplace that has a police and security presence 24/ 7. The parliament of Australia is safe - it is secure - except if you're a woman."

These so-called journalists cheered Tames’ vicious, unhinged attacks on the Prime Minister and gave both women standing ovations. Watch Andrew Bolt on Sky News describing this orgy of hate.

Delighting in it all was Anthony Albanese, our Opposition leader, fresh from his own fulsome apology to parliament. He has taken every opportunity for meetings and photo opportunities with Higgins, praising her “extraordinary courage” and making it clear he was on her side. "He fundamentally seemed to understand what had happened to me” said Higgins proudly after one such meeting.

Labor thinks they are on a winner, exploiting this victim parade to expose what they cast as the government’s “women problem.” The government is delusional in imagining they could ever appease this noisy, small activist group who dominate our media but in no way represent the views of ordinary Australians. Perhaps the Press Club debacle will do something to convince conservative politicians that they are simply alienating their base by grovelling to these hate-filled harridans.

For the rest of us observing all this from the sidelines, it simply adds to our growing conviction that justice for men doesn’t matter in this country. Possible outcomes in the Higgins case are all equally dismal. If the defendant is found guilty in a trial whose fairness is open to question, it will send a shudder through the multitude of normal families already nervous about protecting their sons. But if he is acquitted the cries for further changes to our already anti-male legal system will be deafening.

At least we’ll have the pleasure of demanding Prime Minister and his colleagues apologize in parliament to that young man. I’m sure you’d all be eager to sign up for that fun campaign.