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.
Excuse men David, a jury surely is not trying to get it right.
A jury, being from the scatterbrained public are trying to get it wrong when they know what is right, as they know what a judge would judge it as.
Thank goodness David Heilpern has seen through the eye of a very rusty needle for the told and untold truth of a Senator’s
soon to come downfall. Reynolds’ needs to resign. ‘The Lying Cow’ has just bitten her back, good and proper.
The Liberal Party, widely panned for having a ‘women problem’.
The Liberals, treating their own like how Ms Higgins was treated, it is no surprise that the Liberals have a’women problem’ target firmly stuck.
Participating in the trial by media is treating the criminal justice system with contempt too David.
As is the prosecution in a case with little chance of success – which the DPP normally does not do without there being a media trial running parallel, right?
And cases with no evidence due to the complainant not ensuring the evidence is gathered normally get deemed as such, right?
Before considering that the requirement of beyond reasonable doubt cannot be met in circumstances where the complainant has said in writing that she does not “think” that the sex (which cannot be established occured at all) was consensual, right?
In my view the DPP will be clearly contemptuous of the criminal justice system if it goes ahead and conducts a retrial in these circumstances – and especially so if the defence cannot use statements made in court by the complainant as evidence, as was reported on ABC recently.
The rights of defendants to be innocent until proven guilty beyond reasonable doubt must remain important mustn’t it David?
Thanks Shane. I didn’t contribute to the trial by media – because I did not comment on the guilt or innocence of the defendant. A case with no evidence? We must have been watching different trials. Of course he is innocent ……unless or until proven guilty.
Well said David.
Yes you honour.. Lisa Wilkinson..biggest loser !!
It is hard not to be convinced by the injustice of each case you have mentioned and I could haddly not agree more that justicecappears to have been poorly served.
However, as is often the case with you, you have a somewhat arrogant and elitist view that I guess comes with your long held positions of power.
I refer firstly to your idea that justice would be better served by a panels of judges rather than jury trials – it may be but then again, it may not, as there is nothing to prove that judges are unbiased or independently minded in either politics or in societal mores than are the common people when it comes to assessing motive snd character.
Secondly, I refer to your elitist dismissal of the juror who “did his own research”. Again, I may agree that the said juror’s research was poorly based but it could hardly be more poorly based than one who relys on main stream media, mainstream narratives abd government (dis) information aa has been painfully obvious tgrouggout the covid years.
Ah Mac, I actually thought of you when I wrote the words “did his own research”. Thanks so much for rising to the bait, and throwing in your trademark personal insults, misquoting, covid paranoia, and classic insecurity.
What a remarksbly childish reply.
Rape cases go on too long, in general. A woman actually “trapped in the act” as she awakes, does not “make it up”.
Linda Reynolds’ responses have been an insult to womanhood.. let alone the brave Survivor. Of course she should go. Fast.
Am 91, and have always believed Lawyers “get their rocks off” by forcing victims to go thru their ordeals” moment by moment in graphic detail.
Roma Newton
Thanks so much for your thoughts Roma. They do go on far too long.
Hear hear!
Well said, David.
The concept of jury-trials has baffled me for years. 12 people selected from a list of a larger randomly-chosen group are almost certainly going to contain some who are biased, some who are inattentive and some who want to be anywhere other than on a jury. There is, unfortunately, no system guaranteed to deliver justice. Even a jury full of experts can get it wrong. But a jury full of non-experts?; do me a favour!
As for Linda Reynolds, she’s a Liberal Party politician. What can I say? What needs to be said?
I’d sooner have a jury of elitist judges on the panel than those in-a-hurry to watch ‘Fox Sleuth.’
What I find odd about this trial (non) result was how an officer of the court accidentally found the academic article amongst the notes of one of the 8 women and 4 men jurors while “tidying up”.
I would have thought one looser ought to be the ACT Government and its Attorney General and Police Minister, Greens MLA , Shayne Rattenbury. The immediate cause of the debacle was reported to be a juror, who, followed the advice so popular in the Northern Rivers and did their own research , in spite of being warned 17 times not to. But apparently there is no penalty in ACT for such juror misconduct, which is in contrast with NSW which I read can gaol a juror for up to five years or fine them up to $5,000. I don’t know if that happens but just reading that made analytic me very cautious when called for jury duty.
Perhaps you might be able to explain David if there is any good reason the ACT would not penalise conduct that has aborted a trial and doubtless caused distress to Ms Higgins.