The Australian 27-28May2023
Just before lunch on Wednesday, the lawyer acting for ACT Victims of Crime Commissioner Heidi Yates reminded Detective Superintendent Scott Moller of something important he said earlier in the witness box.
“You take every opportunity to learn from a case, including this one?” Peggy
Dwyer SC put to Moller.
Moller agreed. How could he not? It is hard to imagine any person involved in this scandal coming out the other end – if there is an end – without learning something about their own behaviour.
The board of inquiry into the ACT justice system’s handling of the Higgins Lehrmann spectacle has the potential to provide some useful markers, but only if the inquiry asks every person in this saga what they have learned about their own behaviour. If they have learned nothing, or not enough, then it will fall to inquiry chairman Walter Sofronoff KC to tell us what he has learned about the behaviour of those he has heard from.
Last week, it was about the ACT Director of Public Prosecutions. This week was all about the cops. Next week, it will be Yates.
In Moller’s statement to the inquiry, he recalled that during his first meeting with Yates and Higgins, he asked Higgins to stop speaking with the media.
Moller said words to the effect that “if you’re going speak to the media, and this (the prosecution) can’t go ahead, it’ll all be for nothing”.
Moller says Yates responded on Higgins’s behalf: “She can’t, Scott – she is the face of the movement now.”
Yates’s lawyer this week claimed that Yates said something different, “something like, ‘excuse me, Scott, I’m just going to intervene here … I’d just like to note that the criminal justice system is just one thing that we are dealing with. And Ms Higgins has already undertaken a great deal of advocacy at a national level to bring attention to the difficulties of sexual assault survivors making disclosures and seeking support and calling for improvements across a range of areas.’ ”
In other words, not much different. Yates’s version was a long-hand way of saying that Higgins was the face of the #MeToo movement in Australia.
With the board of inquiry into its third week of public hearings, it is becoming increasingly clear that Higgins is, and was, the wrong face for the #MeToo movement. Decisions by her, and those around her, to air her allegation in the media have undermined key features of our criminal justice system.
Putting it another way, if Higgins is the right face for the #MeToo movement then heaven help the proper administration of justice in this country.
Higgins, of course, has every right to go to the media first and police second.
That was her strategy from the start. But that strategy, bolstered daily by her media supporters, came at a high cost to the police investigation, to the workings of the Office of the DPP, to the trial in the ACT Supreme Court and to subsequent events.
We can try to tally up the financial costs of this saga another day. Here we are talking about the costs to the administration of justice when Higgins became the face of the #MeToo movement.
Start with the police investigation. If Higgins is portrayed as a role model forother women, then her tactic of going to the media first may be mimicked by other women. If so, the same problems that police confronted in this investigation may be repeated more frequently.
We need to understand the reasons police were concerned with Higgins’s media strategy. First, police were concerned that, by speaking to the media, a complainant might risk raising inconsistencies that could undo a successful prosecution.
The more times Higgins gave her version of events to the media, the more likely there might be new inconsistencies in what she said happened. That’s not a criticism of Higgins, more a reflection on human nature, that we don’t always repeat something in precisely the same way. That happened here.
During her interview with Network Ten’s The Project, Higgins made several claims that later were shown to be wrong. That necessarily had the ability to undermine her credibility.
The “media first, police second” strategy posed another risk to our justice system. Bruce Lehrmann has always maintained his innocence, yet the media attention on Higgins and her unsubstantiated allegation necessarily undermined Lehrmann’s right to the presumption of innocence.
Those who showed scant regard for this principle in this case may change their tune when it hits close to home, when they, or someone they know, is accused of rape and faces a media onslaught akin to what Lehrmann faced.
The police made mistakes in this case. For example, Moller conceded this week that police should never have handed Higgins’s counselling notes to the DPP and Lehrmann’s first defence lawyer, John Korn. Was this error, compounded when the DPP read the notes, the result of pressures arising from the febrile atmosphere surrounding a woman touted as the face of the #MeToo movement?
The normal tension between advocating a victim-centric approach and ensuring the proper administration of justice was ramped up to dangerous when Higgins became the face of the #MeToo movement.
On more than a few occasions, the normal rules, and sound judgments, appear to have been discarded for Higgins. Moller told the inquiry that during an earlier case not involving Higgins, prosecutor Skye Jerome told police officers that prosecutions would not be progressed when alleged victims didn’t hand over their mobile phones.
When police investigators told Jerome, during a briefing about the Higgins case, that Higgins had not handed her phone over, “Jerome dropped her head into her hands in what appeared to be frustration and alarm”. This wasn’t the only time there appeared to be one set of rules for Higgins and a different set for other complainants.
Moller recounted that police allowed Higgins to view CCTV footage of her and Lehrmann at Parliament House on the night of the alleged rape, after she kept insisting she wanted to see it.
Showing her that footage went against their better judgment. The normal rule is not to show this sort of footage to a complainant as they may rely on it to change their story if they remember things differently, or if they can’t remember things at all.
Last week, DPP Shane Drumgold also admitted to several errors of judgment. The impact of these mistakes is serious. It’s not just that the DPP sought to keep from Lehrmann’s defence lawyers information that might have helped them in formulating their defence. Misjudgments by the DPP have the potential to undermine our trust in the administration of system.
Moller also gave evidence this week that he thought the DPP decided to proceed with a prosecution before reading the full brief of evidence. The DPP was determined to prosecute Lehrmann no matter what, Moller said, despite concerns among senior AFP officers that there was not enough evidence.
If Yates is right that Higgins became the face of the #MeToo movement, did that impair the DPP’s judgment?
So many people in positions of power who were caught up in the hype of the Higgins media storm appeared to have made poor decisions. Those who caused the original trial to be delayed should be asking themselves how that fits with seeking a victim-centric outcome.
Similarly, Yates – who will be in the witness box next week – should be asked whether her judgment was adversely affected by Higgins’s position as the face of the #MeToo movement.
Yates, who was described by her lawyer at the inquiry this week as a highly professional, compassionate and caring support person for victims of sexual assault, should be asked whether she gave Higgins advice about the inherent dangers of her chosen media strategy.
Did Yates gently suggest to Higgins that being the face of the #MeToo movement might bring much adulation, and many magazine covers, but media attention might undermine a prosecution?
Looking at her own conduct, did Yates consider the possible consequences for the presumption of innocence, and the potential impact on the jury, of her decision to accompany into court the woman who had become the face of the #MeToo movement, with the attendant press coverage that brought every day?
As Lehrmann’s lawyer, Steven Whybrow SC, told The Weekend Australian last week, that conduct carried a less-than-subtle and a less-thansubconscious inference that Higgins was in fact a victim.
“It was about as subtle as if Yates had walked in wearing a T-shirt saying ‘Bruce is guilty’,” Whybrow said.
With two more weeks of public hearings to go, mistakes by police appear to be small compared with misjudgments by other people who chose to become personally involved with Higgins. We will have to wait until July to hear whether Sofronoff agrees that Higgins’s notoriety as the face of the #MeToo movement came with significant costs for justice.
Janet Albrechtsen is an opinion columnist with The Australian. She has worked as a solicitor in commercial law, and attained a Doctorate of Juridical Studies from the University of Sydney. She has written for numer… Read more