Reckless Australian Prime Minister Imperils Fair Sexual Assault Trial

Commentary There’s been endless kerfuffle about the implications of Australian Prime Minister Scott Morrison’s apology to former Liberal staffer Brittany Higgins with eminent lawyers claiming his comments were reckless, and warning they may derail any chance of both parties in the criminal case being given a fair trial. One thing is for sure: the case’s outcomes 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 legal system would be deafening. At least on both accounts, we’d have the pleasure of demanding the prime minister and his colleagues apologise in parliament. What fun that would be. It’s important to clarify a few issues as we go into the discussion of why the Prime Minister may have been in the wrong. In legal terms, Brittany Higgins is not yet legally classified as a victim of this alleged crime. She only achieves that legal status after her allegations of sexual assault are proven in court. Right now, in Higgins legal case, she is the primary witness in a rape case to be heard before a jury in June. A case where the lawyers for the defence have announced their client is not guilty. Under Australian laws, anyone accused of a crime is innocent until proven guilty. We are party to the U.N. 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 the Parliament House, which “should have been a place for safety and contribution, turned out to be a nightmare.” Morrison’s language shows strong support for Higgins’ claim that, after becoming intoxicated and returning to work 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. Brittany Higgins (R) and Grace Tame at the National Press Club in Canberra, Australia, on Feb. 9, 2022. (Lisa Maree Williams/Getty Images) What happened on the Minister for Defence Industry’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 potentially blown any chance of a fair outcome for either party. His irresponsible action has set 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 for the young man involved in the case who has already been publicly named and shamed by the Australian 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 Australian Capital Territory’s (ACT) Supreme Court possibly forget what was said across the lake in the national parliament by the top official in the country? It is simply inconceivable that the accused will be given a fair trial in this case. 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 explained (pdf), in that case, the New South Wales (NSW) Supreme Court’s Justice Elizabeth Fullerton ordered a judge-only trial, reprimanding both the prime minister and former NSW Premier Gladys 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 Sydney Morning Herald investigative journalist, one month before the trial. Meanwhile, with the Higgins case now looming, the outrageous journalist frenzy is in full flight. The National Press Club was on questionable ground, inviting Higgins to join Grace Tame to speak as “advocates for survivors of sexual assault” because it could have harmed her case.  Even more worrying was the sight of hundreds of our supposedly leading journalists, mainly female, wildly applauding Higgins, this key witness in a critical rape case, even before she spoke

Reckless Australian Prime Minister Imperils Fair Sexual Assault Trial

Commentary

There’s been endless kerfuffle about the implications of Australian Prime Minister Scott Morrison’s apology to former Liberal staffer Brittany Higgins with eminent lawyers claiming his comments were reckless, and warning they may derail any chance of both parties in the criminal case being given a fair trial.

One thing is for sure: the case’s outcomes 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 legal system would be deafening.

At least on both accounts, we’d have the pleasure of demanding the prime minister and his colleagues apologise in parliament. What fun that would be.

It’s important to clarify a few issues as we go into the discussion of why the Prime Minister may have been in the wrong. In legal terms, Brittany Higgins is not yet legally classified as a victim of this alleged crime. She only achieves that legal status after her allegations of sexual assault are proven in court.

Right now, in Higgins legal case, she is the primary witness in a rape case to be heard before a jury in June. A case where the lawyers for the defence have announced their client is not guilty.

Under Australian laws, anyone accused of a crime is innocent until proven guilty.

We are party to the U.N. 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 the Parliament House, which “should have been a place for safety and contribution, turned out to be a nightmare.”

Morrison’s language shows strong support for Higgins’ claim that, after becoming intoxicated and returning to work 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.

Epoch Times Photo
Brittany Higgins (R) and Grace Tame at the National Press Club in Canberra, Australia, on Feb. 9, 2022. (Lisa Maree Williams/Getty Images)

What happened on the Minister for Defence Industry’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 potentially blown any chance of a fair outcome for either party.

His irresponsible action has set 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 for the young man involved in the case who has already been publicly named and shamed by the Australian 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 Australian Capital Territory’s (ACT) Supreme Court possibly forget what was said across the lake in the national parliament by the top official in the country? It is simply inconceivable that the accused will be given a fair trial in this case.

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 explained (pdf), in that case, the New South Wales (NSW) Supreme Court’s Justice Elizabeth Fullerton ordered a judge-only trial, reprimanding both the prime minister and former NSW Premier Gladys 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 Sydney Morning Herald investigative journalist, one month before the trial.

Meanwhile, with the Higgins case now looming, the outrageous journalist frenzy is in full flight.

The National Press Club was on questionable ground, inviting Higgins to join Grace Tame to speak as “advocates for survivors of sexual assault” because it could have harmed her case. 

Even more worrying was the sight of 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.”

Epoch Times Photo
Former Australian of the year, Grace Tame (L) and Brittany Higgins, advocates for survivors of sexual assault, address the media at the National Press Club in Canberra, Australia, on Feb. 9, 2022. (Lisa Maree Williams/Getty Images)

Delighting in it all was Anthony Albanese, Australia’s Opposition leader, fresh from his own fulsome apology to parliament, which he too should have known could have impacted Higgins case.

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.

But the cynical would say that Labor thinks they are on a winner, exploiting this young woman to expose what they cast as the government’s “women problem.”

The government is delusion in thinking they could ever appease this noisy, small activist group that dominate our media.

Perhaps the Press Club debacle will do something to convince conservative politicians that they are simply alienating their base by so blatantly pandering to feminist politics.

For the rest of us observing all this from the sidelines, it simply adds to our growing conviction that justice for men is under threat in this country.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.


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Bettina Arndt is an Australian writer and social commentator on gender issues. She was the country’s first sex therapist and feminist, before focusing on men’s rights. Arndt has authored several books and has written for major newspaper titles, magazines, and has featured regularly on television. She received the Order of Australia in 2020 for her work in promoting gender equity through advocacy for men. Find her online at her blog, BettinaArndt.substack.com.