The collapse of the Lehrmann-Higgins trial is a travesty of justice. Neither party received a just outcome. The outcome is at odds with the Rule of Law. This is a real concern. Rape trials are a common occurrence in Australian courts and further afield. The parties just get on with it and it is very rare to receive a call from the DPP that all charges with be discontinued.
Criminal trials proceed along a well-trodden path. A complainant alleges rape and the defendant says the rape simply did not occur or that it was consensual sex. Bruce Lehrman’s defence rested on the latter.
The police investigate and where the evidence reasonably supports a prima facie case that is, on the evidence there are reasonable prospects for a conviction, the person is charged. In the event that the evidence does not support a conviction the person is released from police custody without charge.
The same person can be re-arrested should further compelling evidence become available. However, in our experience this is rare.
The police mostly get it right when they decide to prefer charges. This does not mean the suspect is guilty the police generally have gathered all the material needed well before the suspect is interviewed. The majority of police investigators are reasonably competent and reasonably thorough when it comes to investigating alleged crimes and deciding whether to charge or not charge a suspect.
Once a person is charged, the police assemble and provide to the DPP (and serve on the defence) a brief of evidence setting out the case against the accused. The important point here is that the decision to charge or release a suspect is the sole responsibility of the investigating police officer and senior officers as part of the charging process.
The DPP is solely responsible for preparing the brief for trial, it is not involved in the investigating or charging steps. If the DPP are of the view that the prospects of a convictions are slim then the prosecution may be discontinued however, this is usually with the consent of police.
The decision by the DPP to not proceed to retrial for reasons to do with Brittany Higgin’s dire mental health has been slammed as inexcusable. The revelations that the Australian Federal Police (AFP) pressured the DPP to drop the case at the onset, presumably due to an insufficiency of evidence, yet the DPP pressed on regardless is hard to explain.
A board of inquiry has been decided, (the ACT equivalent to a royal commission) to:
“examine the conduct of police and the ACT’s top prosecutor in the case against former Liberal Party adviser Bruce Lehrmann, who was accused of raping his then colleague Brittany Higgins in 2019”.
Chief Minister Andrew Barr said: “An independent review of the roles played by the criminal justice agencies involved is the most appropriate response……it was crucial to ensure that all officials involved had performed their duties with “appropriate rigour, impartiality and independence”.
The point here is that when the defence go to trial, we depend on the rigour, impartiality and independence of the police and DPP. That the criminal trial process is free from interference, particularly political interference, and the relevant investigation and prosecution agencies discharge their responsibilities in keeping with the Rule of Law is a given. In this case, it
might not be so. The Bruce Lehrmann – Brittany Higgins Trial is not over.
