There are two big losers in the criminal justice system this month. The first is the institution of the jury. Two high-profile trials aborted – the first, that trial in Canberra where the jury looked about to be dismissed anyway after interminable days of deliberation when a juror ‘did their own research’ on sexual assault reporting. Duh. Then there was the trial of Prison Officer A where he was charged with murder for shooting a shackled and handcuffed First Nations prisoner trying to escape in Lismore.
The untold misery that further delay causes to the victims and their families (and the defendants) by clinging to this archaic institution shows that its time is up. Where is the evidence that a jury gets it right more often than a panel of judges – particularly in sexual assault cases or murder cases where the law is murky? It is the ultimate expression of the triumph of outmoded tradition over common sense.
There ought to be a second loser from the whole Bruce Lehrmann aborted trial fiasco – Western Australian Liberal Senator, Linda Reynolds.
Senator Reynolds was the minister when an allegation was made that a male member of her staff had sexually assaulted a female member of her staff. On her ministerial couch. And after the allegations were aired she declared, in an open office within hearing of a myriad of staff, that the alleged victim was a ‘lying cow’. The urban dictionary tells me that the term refers to a fat, lazy, stupid woman. Lovely. I bet the good senator wouldn’t call a male a ‘cow’.
So, she gets sued for defamation and had to pay tens of thousands of dollars plus legal costs and then the senator had to publicly apologise, in writing, for any hurt and distress.
The plaintiff, the alleged victim, promptly donated the proceeds to sexual assault support services.
In criminal trials, the DPP (Director of Public Prosecutions) prosecutors have to call witnesses even if they are adverse to the prosecution case. The prosecution can still cross examine such witnesses if they are declared ‘hostile’. This is a fundamental rule of fairness developed over the eons – the prosecution bears the burden of putting even unfavourable evidence before the court.
Linda Reynolds knows she is to be called to give evidence about what she was told when, and by who. Of course, she cannot attend the whole trial in court waiting her turn. That is not how criminal proceedings operate. Witnesses wait outside. And that is obviously because witness B, yet to be called, should not be able to hear and see witness A give their evidence lest it taint or influence B’s later testimony. Also, there is lots of action and submissions and inadmissible stuff that occurs in the courtroom that may never reach the jury, or the media, but those that are physically present can hear.
You would imagine that Linda Reynolds would know this basic rule. After all, she was Chief of Staff to the Minster for Justice. She was actually the Assistant Minister for Home Affairs and the full-blown Minister for Defence. She knows rules and protocols from decades in the military rising to the ranks of Brigadier no less. One rank below Major General! Gasp. She is not without the ability or funds to get sound legal advice, perhaps from Christian Porter her erstwhile fellow Western Australian senator and former attorney general. I reckon he may know a thing or two about such rules.
Surely, she must have been aware that she was not in court watching it all unfold for some good legal reason.
What actually happend? Well first, her partner sits through key parts of the trial, particularly those of the alleged victim. Senator Reynolds says she never asked him what had happened in court. Phew.
Second, before she gives evidence the senator contacts the defence lawyer and asks him for a copy of the alleged victim’s transcript in the trial. Why?
And finally, two hours into the alleged victim’s cross examination, she decides to suggest to the defence lawyer where to look for some evidence that presumably might bolster the defence case. And that was in messages between the alleged victim and another member of her staff. Here is her text to the defence:
‘Also if you have text messages between Brittney and Nicky they may be revealing’.
There is so much that is deplorable about this conduct that it is hard to know where to start. You would think that having been sued in such circumstances the senator would just play a straight bat, not take sides, and plainly do her duty to the court. But no, instead she knows her partner is there in court listening to the evidence at the very least. She contacts the defence to help the alleged perpetrator over the alleged victim while she is being cross examined. And then pleads ignorance saying that ‘I haven’t been through this process before’.
I would love to know how much she has tried to help the prosecution case with tips. I guess we will never know.
This is treating the criminal justice system with contempt. If a bit player in a trial is truly so ignorant of the role of a witness in criminal proceedings, even once subpoenaed, then you would have thought they might get some legal advice.
Hopefully, if there is a retrial in February, one witness ought to be giving evidence as Ms Reynolds, not Senator Reynolds. She should resign.
That is because such conduct is utterly inconsistent with representative public office.