Please don’t mention guilt or innocence while asking if there was a case to answer

Dec 27, 2022
Former Liberal Party staffer Bruce Lehrmann arrives at the ACT Supreme Court in Canberra, Thursday, October 13, 2022. Former Liberal Party staffer Bruce Lehrmann is accused of raping a colleague Brittany Higgins at Parliament House in 2019. Image: AAP Image/Lukas Coch

Strictly speaking the various inquiries into the case against Bruce Lehrmann for the alleged rape of a colleague do not involve a review of his guilt or innocence.

Mr Lehrmann’s trial miscarried because of the misconduct of a juror, and the ACT Director of Public Prosecutions decided not to go for a fresh trial. He cannot be tried again. But any investigation into the attitude of mind that police investigators brought to the case, the adequacy of their investigation, and whether their brief of evidence justified his being charged by the DPP must necessarily look at the strength of the case put together. And the strength of the case that could have been put together. Without saying it is doing so it must consider whether Lehrmann was guilty of rape. Lehrmann is at no risk of criminal penalties or jail from such a finding. But he could well be exposed to civil litigation because of evidence gathered, or to the popular prejudice that could be excited if anyone concludes that he has gotten away with a profoundly serious offence.

Both he and his alleged victim have signalled willing cooperation with the inquiries, but they will not be setting the agendas.

Lehrmann is not, of course, the only person with an awful lot at stake. The woman who has accused him of rape may be at risk of being found to have made up her complaint. Or somehow to have so compromised a successful prosecution by her behaviour after whatever happened. She has already complained of how the odds are stacked against a victim of sexual assault. She has compared her ordeal and cross-examination with the fact that Lehrmann sat silent, as was his right, through the trial.

Most unusually, both the investigating police and their superiors have also put her character in issue. And, at least according to the DPP, aligned themselves with the defence case, including by openly sitting with and advising lawyers for Lehrmann. It is alleged that efforts to sabotage a successful prosecution included making the accuser feel bullied. Someone whose identity police can’t seem to discover passed psychiatric and counselling information to the defence. The leaker had to have been a police officer from the investigating team or its supervisors. Given the united front the police have been showing, it could have been a deliberate act by investigators acting in concert. Whatever the inquiries find or suggest as to whether a prima facie case existed against Lehrmann, alleged police conduct could only further hurt the AFP’s reputation as a force which has not learnt much from wide public discussion and debate of the police treatment of sexual assault victims over the past 50 years.

The attitudes as much as the actions of police and their superiors will be under searching scrutiny

If either inquiry is to be popularly regarded as fair dinkum, all police investigators, and their supervisors will be closely cross-examined in public about their attitudes and views about sexual assault. But not just that. They will be asked how those attitudes, views and preconceptions were applied to the facts as they saw them, and their personal (as opposed to imposed) views about the sufficiency of evidence. And about their own, and the team’s diligence as to gathering all the relevant evidence. This examination should not be at the instance of the accuser alone. Much wider public interests, including the safety and sense of security of more than half the population are involved.

Sharp questions about attitudes to sexual assault are certain because of the recent publicity given to several external inquiries into police culture in different Australian jurisdictions, including one from which the current AFP commissioner, Reece Kershaw was drawn. These have shown how ingrained sexism, sexual harassment, bullying, misogyny and racism are among cops. We might charitably assume that it would not be as bad in the good old ACT as in Victoria, Queensland, Western Australia, the Northern Territory or NSW. But there is ample evidence that the problem is in the AFP too. There is nothing exceptional about the selection or training of officers which weeds the problem out.

In Queensland, in at least some respects a better trained and better regarded force, the Police Commissioner began in a complete state of denial about the width and breadth of the misogyny and racism problems in her force. But she was made to confront appalling sexism, sexual harassment, racism, and the practical aiding and abetting of domestic violence against police wives. She changed her tune entirely. The problem in her force is deep and ingrained, and permeates all levels of her force, right up to the near top. It won’t go away with memos, or mere action plans drawn up in police media units.

The Queensland commission of inquiry also demonstrated that the Queensland ethical and professional standards areas were a joke in practice – something also frequently alleged of the AFP. Even with the addition of an external integrity commission, most complaints end up being dealt with by police themselves at local level, usually without any formal punishment or actual reproof.

Chronic misogyny and racism offenders, many in positions of power and able to exact revenge on complaints, were typically those who created the prevailing police cultures. This includes ostracism of complainants, intimidation and organising united fronts of denial. Some of the worst offenders, least likely to change behaviour, are officers who complained openly as well as privately of being frustrated by “political correctness” and “woke” views. They are out of step with modern ideas about women, sexual and domestic violence, and race. Some have formally attached themselves to men’s rights lobbies and have abused their positions to pass on information about the whereabouts of abused women, or to rally around colleagues accused of violence.

The pitfalls of police investigating police and the effective immunity from discipline of senior officers has seriously compromised actions to raise professional standards.

The Commonwealth Law Enforcement Integrity Commission knows the experience in Queensland and elsewhere shows integrity activities have been seriously compromised by their use of officers from the same force to conduct most the investigations. And by their complacency about handing over many matters to local commanders without proper independent investigation. And by their being seen as and behaving as partners and associates of commissioned officers, many of whom have seemed almost immune from investigation, even for serious matters.

It seems plain from the stridency of the AFP Association over the Lehrmann case that it will be playing its part in suggesting group solidarity as the strategy for officers involved in the case.

But the AFPA is very uncomfortably aware that many of its members bristle with resentment at the perceived unfairness, differential treatments, and commissioned officer favouritism of the complaints, standards and integrity processes. Significantly, many of the ACT complaints, as in Queensland, focus on unpunished sexual harassment, pervading sexism and racism, and bullying. The AFP has never been subject to any independent and arms-length review over its 43-year lifetime. As a result, there has been little parading of accumulated dirty linen on such matters.

Experience suggests that when there finally is such a review, accumulated grievances will do serious long-term damage to the force and its management, at national and ACT level. The outcome of the various Lehrmann inquiries could end up sparking just such a review, even if the Commonwealth attempts to sterilise the national side from any problems so they can claim them to be concentrated in the ACT, under its own local management.

ACLEI’s brief to conduct the inquiry comes from a reference from the ACT Attorney-General, Shane Rattenbury. As a result, ACLEI has slightly different powers than usual. But it still suffers a number of jurisdictional handicaps, underlining why a second inquiry is essential. First the ACT DPP, and for that matter, the ACT Justice Directorate, and the ACT jury system are not properly within its purview. Indeed, the security system at parliament house is out of its jurisdiction.  One would expect that the parliamentary department, parliament House’s own security guards, and those involved in the closed circuit surveillance of parliamentary corridors would be fully cooperative with investigations. But experience, including over the very Lehrmann case, has demonstrated some very strange views in that system about accountability to the law. Those views are often invested with some spurious, but untestable views about parliamentary privilege.

In the past ACLEI has usually self-limited itself to cases where the allegations involve breach of the criminal law. Although it is imaginable that people making inquiries will consider the common law offence of misconduct in public office and attempting to pervert the course of justice, it is not certain that merely playing dead in a trial, as alleged, would necessarily amount to this.

Jurisdictional problems are also there in spades with relevant Commonwealth ministers, and with ministerial staff. Two ministers, Linda Reynolds and Michaelia Cash, appeared at the trial under subpoena. The conduct of Reynolds, including her cooperation with the defence, attracted considerable comment. As characterised by the DPP, she “gave evidence directly contradictory to her chief of staff, then directly soliciting transcripts of other evidence to tailor her evidence direct from defence barrister Stephen Whybrow. She further engaged in direct coaching of the defence cross-examination of the complainant by directing them to evidence she should not have access to. … She further organised for her partner to attend the court for the entire trial, with him regularly seen conferencing with the defence team during the course of the entire trial.”

It is by no means clear that Reynolds will be a volunteer during the inquiries. Or whether she can be compelled to be. Some will argue that she ought to have further questions to answer. Among these would be about her interchanges with Chief ACT Police officer Neil Gaughan, during the investigation. Gaughan’s liaison with her, presumably to brief her on the investigation, has still to be explained. It does not easily fit within a commissioner’s instruction, which ought to be regarded as legally improper in any event, that the minister responsible for home affairs (at the relevant time Peter Dutton) be informed if matters of political sensitivity for the government arise. Dutton was informed but there is no evidence that he made any attempt to influence the investigation, let alone briefed Reynolds.

Let’s draw on some of the investigative and legal experience of women, the experts in sexual assault and the missing ingredient in the Lehrmann case

The trial was formally unaware that whatever happened at Reynolds office occurred shortly before a federal election was called. Political parties were clearing the decks for battle. Had a security breach in the office of the minister for defence become known, and the alleged rape of a political staffer by another one become news before election day, it could have been very damaging, not least in the context of national security issues, and allegations of a Morrison “problem with women.”

The alleged victim herself has described her own concern that what happened could damage the party she worked for, and her employment future. She had a sense of being handled or managed by people, including in the prime minister’s office, who didn’t want matters to come out. Scott Morrison was asked about when and what he was told, first about the security breach at Reynolds office, then about the allegation of rape. There were further questions, smothered, evaded and never really answered by Morrison about the involvement of members of his private office. There were allegations of secret briefings to journalists designed to discredit, at the least, the boyfriend of the complainant. Morrison has a reputation of being a great micro-manager, particularly during election campaigns. Observers say he would want to have known of anything capable of derailing or distracting the campaign.

What interest investigating police took in these political considerations is not known, but should be investigated, given their complaints of the case being affected by “politics.” They are plainly part of the res gestae of the case, and plainly relevant to questions of “political interference” whether by police or, as the police allege, the DPP. It is about time some of the questions were answered. That’s because they go to the integrity of the police involvement, as well as providing some context to sharp police criticisms of the complainant’s timing in making her complaint.

Many of these questions, including the initial response by AFP officers stationed at parliament, involve the national side of the AFP. So too does the possible effect of a very ill-judged memo issued by the national commissioner, Reece Kershaw, before the case arose, during which he tried to make his office the clearing house for sexual abuse allegations against federal parliamentarians.

That the most senior ACT AFP officers, and even Kershaw himself, involved themselves in investigations which should have been mostly the province of more junior investigators underlines the AFP’s own sense of politics in the affair. They confirm that it would be quite improper for any AFP officers, or any ACLEI investigators with AFP backgrounds to be involved in reviewing the investigation. Including any evidence that might have been ignored or missed. These investigators will be questioning and taking statements from much more senior officers with whom they must have continued professional, and in the incestuous ACT, personal relationships.

For those at the AFP end, the stakes are exceedingly high. The appearance of conflict of interest is manifest, and no public inquiry would have any credibility if its findings can be dismissed as police investigating their own mates and superiors. That, alas, could also apply to non-AFP ACLEI staff right to the top, given their history of professional closeness of relationships with top AFP officers, all assumed to be beyond corruption.

Around the states are any number of investigators without such connections to the AFP. Some work in other forces. Some in the police integrity “industry.” People unlikely to have any axes to grind, or agendas to pursue. Some, in any event with more background in, and a greater record of successful investigations in sexual assault matters.

People more used to ignoring the helpful “suggestions,” constant minor interferences and pretend orders of superiors more focused on dealing with the PR and the politicians than the actual investigation of crime and the bringing of accused people before the courts. Hundreds of important criminal matters go before the courts each year without anything like the concentrated, focused and political outcome -oriented top-level attention lavished on this case. Is that what the characterisation as “political” means?

A good many of the potential external investigators, free of links to the AFP, are women.

Bringing in experienced women, almost by definition, more expert in sexual assault, would be a useful antidote to the fact that the senior ACT supervisors, who plainly took the lead in trying to stymie any prosecution, were all men. People who formed a collective view – which in police hierarchies almost invariably means from the top down. Views characterised by the DPP as not being any sort of objective briefing but “a clear and overt attempt to use loaded characterisations of some very select evidence in an attempt to get me to agree with a position the police had clearly adopted”. At further meetings, police were said to have cherry-picked selective evidence, with “blatant misrepresentations of evidence” claimed to be damaging to the complainant.

Introducing the professional views, actual expertise and experience of women, whether as police investigators or as prosecutors with a working knowledge of a credible case, might be the novel ingredient this melodrama has so far missed.

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