The Brittany Higgins sexual assault case – now aborted – has left in legal limbo the accused, Bruce Lehrmann. This is unacceptable in a country that has the common law doctrine of innocent until proven guilty at the heart of its justice system.
Lehrmann’s current difficulties remind me of another case. Though of very different circumstances, like Lehrmann, the accused in that case was unable to clear his name. Known as The Winslow Boy because of the play and subsequent movie of that name, this was the story of George Archer-Shee v The King.
In 1908, George Archer-Shee, a young cadet aged thirteen at the Royal Naval College at Osborne, was accused of stealing a five-shilling postal note from another boy and cashing it at the post office. The result of this accusation was that Archer-Shee was expelled from Osborne. Unfortunately, the Admiralty would not review the case despite the boy’s assertion that he was innocent. However, the boy’s father refused to accept that young George had committed the crime.
This was a time when one’s name was of the highest of value to a family. Reputations then were of even greater importance than they are today. Today, for example, sports “stars” can be resurrected reputationally with some good PR work, despite a major misdemeanour. Then, doors would have closed permanently and few if any options would arise under the same circumstances. And even under normal circumstances, without the support of a patron willing to vouch for another, one’s prospects were slim.
A celebrated barrister and Member of the Commons took up the case after spending some hours with the lad to ascertain if truly he was telling the truth. But hurdles remained. Here we can identify some similarities with Bruce Lehrmann’s current situation in the ACT DPP’s decision to withdraw the accused’s right to a second trial because of the plaintiff’s reported medical condition, and yet state that the case had merit.
Because Archer-Shee was a naval cadet the civil courts were not an option. Second, the boy was not entitled to a court martial because he was not enlisted. The only recourse was a petition of right against the crown. The legal principle being challenged was the doctrine that the king (and the Admiralty as a result) could do no wrong. Consequently, George Archer-Shee’s reputation wallowed longer in legal limbo than it otherwise should have (as does Lehrmann’s reputation today).
Finally, the government succumbed and George’s case went before the High Court on 26th July, 1910. George was cleared. (Tragically, George was killed at the age of nineteen at the First Battle of Ypres, on the 31st October, 1914).
The Winslow Boy, with screenplay by Terrence Rattigan and with Robert Donat playing the barrister and Sir Cedric Hardwicke in the role of the father in the film version, is wonderful. Though like other cinematic treatments of historic events and characters, it, too, melds art and history, it is still well worth the watch (challenging our prime Cat movie man reviewer, Wolfie, here.) And especially so because it upholds powerfully the right of all those who stand accused the presumption of innocence and the right to a fair trial.
The DPP has acted disgracefully — as you point out, where is the presumption of innocence?
I loved that film
There have been plenty of tweets, some from blue ticks, saying we’ve got to change the law, but no one suggested how.
Simple, Tony.
Men can now be found guilty on account of:
1. MSM accusations.
2. Social media accusations.
3. Anonymous scarlet letters.
Anyone opposing this reform hates women.
That’s an excellent analogy between Lehrmann and The Winslow Boy.
The Winslow Boy (1948 version not the ordinary remake in 1999) is a very good film with an outstanding performance by Robert Donat as the MP/barrister.
The film doesn’t play it safe as although the family wins the case, each of them losses something along the way: the eldest son is forced to leave Oxford out of lack of money, the daughter loses her marriage settlement and subsequently her fiancé, and the father loses his health.
Tony Taylorsays:
December 5, 2022 at 7:46 am
The law does not need changing. It needs to be upheld. The right to the presumption of innocence until proven otherwise is paramount. The ACT DPP has, imho, undermined that principle. The question now to ask is has the DPP made his own position untenable, given, I presume, that he is an officer of the court.
Its not a bad analogy.
Without any way of having a finding made the accused is eternally accused.
Add in a few civil cases where parties settle or there are non-criminal standard judgements made and you hang an albatross around the accused’s neck.
As much as i think the chap is a lump of perambulating poo there are echoes of the Lloyd Raney case. where every accusation has been made, guilt decided, then no case can proceed due to lack of … evidence.
A law change??
No civil case can proceed where there are allegations of a criminal nature until a criminal prosecution is proven?
All sexual assault hearings to be held in the same secrecy as childrens court/family court matters?
Women should cover their ankle or they are filthy sluts asking for it and fair game?
All men should have a blockchain triggered explosives device implanted in their knackers at puberty, unauthorized access to lady bits trigger the device.
A few modest suggestions.
Wolfie, Donat is absolutely wonderful in the role of the barrister. You forgot that he, too, lost something during the case: that of becoming Lord Chief Justice. In all, as the sister said to her father, they would not have turned away from the fight. Thus showing that the principal of “let right be done” as Donat declares, is of greater importance than is any concept of individual advancement.
Your piece BBS brought back wonderful memories of studying The Winslow Boy at school under a strict English teacher who found a way of enthusing us to read, think, and make rational evaluations.
Being only a little older than George when I read it, and a little younger than when he met his death, it didn’t take too much of a leap to imaging myself as George.
Great teaching, great literature, and lovely memories. Thanks BBS.
Interesting parallel BBS. The Archer-Shee case also had a strong stench of sectarianism around it. It has long been speculated that the young George was targeted because of his Roman Catholicism. The Archer-Shee family were a well known recusant Roman Catholic family, related to other prominent Catholic recusant families such as the Throckmortons and Petres.
OSC,
Unlike you I had mediocre English teachers who, because of harebrained “new” teaching methods, threw out the idea of dissecting great principles and concepts.
Luckily, I’m a reader and have always loved really great films. And – and a big “And” it is – I was brought up by strong but caring parents who taught me to question everything.
On the film, as soon as the announcement by the DPP was made, I thought of it.
Hopefully, Lehrmann will have legal counsel willing to assist him further – just like George had.
In writing this, I’m reminded of another great film – A Man For All Seasons – and the point at which Moore, in the voice of Paul Scofield, tells his son-in-law, Roper, that he would defend the devil, in order that he, too, would be defended.
While Lehrmann has not been from accounts an exemplary player in this very human affair, he has the right to innocence until proven otherwise. Just as Scofield’s character asserted.
Cassie, yes, that point is made very clearly when reading about George and his family.
Also interesting for George’s case was that in being in banking, the father had brought his children up with the highest of standards about money.
Consequently, the idea that young George could have actually stolen the money of another was so far beyond the family’s own ethos.
Where do we start ? Morrison’s unforgiveable “apology” in parliament, the National Press outing with the media’s favourite “believe all women” maven Grace Tame (and scarcely a word pointing out that normally, in our system of “justice” the trial precedes the hanging) or the latest affront by Drummond? At the very least he should have re-iterated that the accused must be presumed innocent. Apparently not anymore. And now, no doubt, the woke media and political class, will cheer every step of Ms Higgins $3m compo claim seeing it as some proxy proceeding to establish Lehrmann’s “guilt”. And she is almost certain to be successful if the Tudge case is any guide.
tommbellsays:
December 5, 2022 at 10:54 am
+1
And now we have the plaintiff starting civil proceedings against numerous parties, with the tab on the account of the poor old suffering taxpayer.
If Ms Higgins has enough fight in her to mount these new cases and damn her “health concerns”, she has enough strength within her to have the second trial proceed.
In fact, in seeking damages for lost and future earnings she gives the lie to the health concerns that the ACT DPP referred to in the reason why the trial has been aborted. Drumgold has been taken for a fool.
My recent court experience (I successfully defeated 4 criminal charges laid against my by the AFP after being arrested during the Canberra Convoy protests) laid to rest any quaint illusions I had about the presumption of innocence:
At my initial bail hearing, I was referred to as ‘the offender’ – not the accused, and the magistrate himself asked for ‘the facts sheet’ – by which he meant ‘give me the police accusations sheet. When I protested that I was denying the charges, he looked over his glasses at me and said ‘well I have to go by the facts don’t I?’.
Add to that all the external ‘presumptions of guilt’ now built into the system (believe all women, trial by media, ‘victim’ advocacy groups etc etc and you can see that the ‘presumption of innocence’ is long gone from our legal system.
Then there are the parts of the law where they frame the charges such that ‘proving you didn’t do it’ is not even an allowable defence! That applies, for example, to speed camera offences – if you read the infringement notice, you will see that they never even try to prove you *committed* the offence (driving a vehicle at above the allowable speed), they instead charge that you were ‘the owner of the vehicle detected in the commission of the offence’. As such, proving you were not driving is not a viable defence. They set this out in the notice. Your only defence is to nominate someone else for the crime. Proving you were not driving is not a defence!
Poor fella my country.
PS – *always film the police* also
Not to my way of thinking.
He was innocent according to law at the beginning of this and he still is.
Speaking of lawyers, I’m wondering if there are ethical/professional rules which, at the very least, caution solicitors about the obvious danger in taking civil action at the behest of a “fragile” woman in a psychiatric ward. She cannot win that case – there having never been a rape – and she cannot outspend the Commonwealth. A shocked and chagrined, mortified and stupefied Jackie Chiles seems to be in charge of her legal team.
C.L.
She cannot win that case
Mediation is the first cab on this journey, C.L. If the case is settled out of court, which seems to be the design, and because it is the taxpayer as the milking cow, the bureaucrats more than likely will roll over. See the Alan Tudge payment to the staffer.
Meanwhile, Lehrmann has been thrown off the dole for not meeting his mutual obligation requirement (I don’t blame him) and is now reportedly “cutting wood at his friend’s farm for money.”
Re the ACT, the legal establishment in that hobby farm deliberately ran this case with no evidence because they figured a year of defamation would tilt the jury in the ‘right’ direction. Everyone with common sense could see that. The judge’s fake finger-wagging about respecting the accused from now on was tendentious, theatrical garbage.
C.L., yes, he is innocent under the presumption of innocence doctrine. But can he get a job, have a life, imagine a future without first clearing his name in a court of law? In all of that he is in legal limbo. On Outsiders yesterday, UQ professor of law, James Allan, said that normally he would advise against civil action but with what has happened to Lehrmann, mounting a civil case may be necessary.
“C.L., yes, he is innocent under the presumption of innocence doctrine. But can he get a job, have a life, imagine a future without first clearing his name in a court of law? In all of that he is in legal limbo. On Outsiders yesterday, UQ professor of law, James Allan, said that normally he would advise against civil action but with what has happened to Lehrmann, mounting a civil case may be necessary.”
Yes, I watched that too, and I noted what Allan said about the state of Australian law in some jurisdictions, such as the ACT and Victoria, compared to woke Canada. Allan said that there’d be no way in Canada that Drumgold would be getting away with what he said last Friday, there’d be universal condemnation and censure. As Allan said, whilst Canada might be woker than Australia in many respects, there’s still respect for the basics of common law. Which means this country is, without a doubt, a shithole.
it is the interests of the ALP government for the payout to be as large as possible.
The process is the punishment, regardless of guilt or innocence.
look at Vic police, if you can stand it, the way they persued a “porsche driver” who was probably a bit of a d*ck. They had to dig up some ancient outrage law to charge him with, because the police disliked him very much
he had not committed a crime photographing dying police or aiding them. Indeed, how was he meant to aid or assist them after a truck ran them over at near on 100kph?
they got away with it and the defendent plead guilty just to get it to end and his lawyer advised him to do so as he would be persued endlessly
he was deemed guilty of “something”and they had to then find a charge. If everyone is going to be treated that way because a group of powerful people are mightily offended, then we lack justice and Australia is a sh*thole
vic police thought nothing of stitching someone up because of their rage and hatred, Australia is a sh*thole as no-one defended his rights
back to the situation at hand, it stinks .. this bloke might be all manner of things, but above all else, he is innocent
Q – can he sue her for frivilous persecution, or similar? Damages of some kind? Is that why she is now going after the former ministers? to deflect blame perhaps?
if she can continue shopping for satisfaction, why can’t he?
If Linda Reynolds and Michaelia Cash are being sued in their (former) official capacities, I get that the public service will be more than happy to reward Brittany with a generous settlement. But inasmuch as this would reflect poorly against Reynolds and Cash (or at least be spun that way), have they no personal say in refusing to settle?
Amazing how Ms Higgins’ ‘mental elf’ waxes and wanes according to the needs of the moment.
Quite remarkable. Mental health professionals should study this, in detail. There may well be some valuable insights.
Not really. If they want the indemnity, they follow the advice proffered up by the department’s lawyers. Which is overwhelmingly likely to be recommending an absurdly generous settlement. The alternative is for Reynolds/Cash to ditch the indemnity and fund their own lawyers. As Christian Porter will attest, that’s an extraordinarily expensive option which few can afford without outside help.
My radar says there will be minimal difference, if any, between a court finding him “Not guilty” & his current status of “No charges to answer”
The wokerati & feminazis will white ant him no matter where he goes or what he does.
Sal,
This is what has happened to Cardinal Pell. However, whatever those lefties and RC bigots think, Pell was exonerated. And every day post the HC decision, that rankles them.
Lehrmann stands accused in the media. The only way out is in the actual courts, which will rankle the left and the feminazis just as much as it did with Pell.
On him potentially winning a civil case, much may well have to be paid out by those who have slandered and libelled him. That at least would allow him to plan a future.
In a year’ time Drummond will still be in his position and the ACT legal community will have closed ranks lest they lose gummint work.
As Sal opinioned upthread, there are degrees of innocence.
To the law and right thinking people, Lehrmann is innocent simply because he hasn’t been found to be guilty.
The next degree of innocence relates to people who may confer innocence on him if a jury decided that he is so after a second court case.
Then there are the intractables who will deem him guilty even if a jury finds him innocent. These brain dead ideologues are everywhere, even commentators on this journal who would say Lehrmann was found to be innocent “on a technicality.”
The takeaway from this episode though is how the individuals in this affair would have progressed without this messy late night visit to the bosses office. In another ten to fifteen years, these individuals may have been standing as LNP candidates in your electorate as that was their career path.
Scary isn’t it.
A barrister has put his head above the parapet and writeen what I think is a very good critique of the whole hot mess
Don’t judge the legal system for sorry saga of the Lehrmann trial
Ah – I see Gray Connolly has tweeted this, and its been picked up already.
Some interesting legal take here, too.
https://aulich.com.au/act-dpp-must-resign/
https://aulich.com.au/trial-by-media-bruce-lehrmann/
Astounding that Higgins did not need to take the stand in court or expose herself as the complainant – with all the mental stress those actions entail.
She chose to do so. She chose to make this a media and public spectacle.
It backfired – and now she wants compo.
if she can continue shopping for satisfaction, why can’t he?
Well, Lehrmann can please himself what he does, it’s a free country
His problem comes down to having gone straight into A/G Brandis’s
as a 17 year old just finished High School.
In other words, his only marketable skill was who he knows as a Lobbyist, and that’s it.
And that’s not Brittany Higgins fault.
Unless there’s something awesomely special about this guy that no one’s letting on, he can go on the Harvest Trail and pick grapes in Victoria, like anyone else.
On him potentially winning a civil case, much may well have to be paid out by those who have slandered and libelled him. That at least would allow him to plan a future.
His only marketable skill was knowing George Brandis and Linda Reynolds.
It wouldn’t be surprising if they gave him a leg up again somewhere well out of the public eye..
As far as Corporate work goes, which I assume is what everyone here is talking about, he had a lobbyist job with Philip Morris, iirc.
Now, certain irresponsible websites had already named him, but when he was formally named, Philip Morris had him escorted from their premises by security.
That suggests that Lehrmann wasn’t fully upfront with his employer and possibly has a massive sense of entitlement?
Shy Ted at 6:39
Nothing surer. Particularly when it is doled out through shortlisted panels.
Ed Case says:
December 5, 2022 at 9:09 pm
Yes, Ed, you’re right that Lehrmann can please himself as to what he does or does not do with the next part of his life. As can Ms Higgins. But that’s not what we’re talking about.
What we’re talking about is that an accusation was made against him. His trial, because of concerns over the health of the complainant, was aborted.
However, because the country knows the name of the complainant and because she has allowed herself to be plastered all over the media, she ain’t going quietly, resulting in further damage being done to his reputation, with possibly no way to clear his name. While she, now, seems to have rallied sufficiently to start new proceedings in the civil courts.
It is of no concern how he got his job as an advisor to any government ministers or whether he was good at it.
No.
It may ‘suggest’ Lehrmann wasn’t upfront with his employer and/or had a massive sense of entitlement, but that’s all it does.
In the corporate world, a person can be escorted from the premises by security for any number of things; using words that offend a transsexual person can get an employee marched out.
Lehrmann doesn’t appeal to me, but neither does the corporate world
An excellent post, BBS.
To my shame, I had never heard of the Winslow Boy. Thanks for remedying this.
She chose to do so. She chose to make this a media and public spectacle.
It backfired – and now she wants compo.
Rubbish.
Higgins is taking action against Reynolds and Cash.
That’s unconnected to the Trial and was always going to happen, regardless of the outcome.
In the corporate world, a person can be escorted from the premises by security for any number of things; using words that offend a transsexual person can get an employee marched out.
They might get marched out for wearing a Gorilla Suit too, but you know and I know that’s not the reason Lehrmann got the bums rush from Philip Morris.
What we’re talking about is that an accusation was made against him. His trial, because of concerns over the health of the complainant, was aborted.
No.
The Trial was aborted because one of the holdouts brought contraband material into the Jury Room.
Prior to that, Lehrmann had spent 12 months incommunicado in a private Mental Health clinic, his various solicitors had made a number of Applications to various Courts that the Trial not proceed.
He was charged, and a Magistrate found there was enough Evidence to proceed to Trial.
It is of no concern how he got his job as an advisor to any government ministers or whether he was good at it.
Well, if he’s claiming Damages for loss of income, he’ll have to show that he was qualified for a $200k/year Senior Advisers job at the age of 19, and that he was pretty good at his job.
Being sacked by Reynolds for his 2nd unauthorised entry to Parliament House could make proving that a little difficult, though.
Great contribution BBS, sorry I wasn’t checking the Cat daily and missed it when it first appeared.
Super thread!
Ed Case said:
The Trial was aborted because one of the holdouts brought contraband material into the Jury Room.
Prior to that, Lehrmann had spent 12 months incommunicado in a private Mental Health clinic, his various solicitors had made a number of Applications to various Courts that the Trial not proceed.
He was charged, and a Magistrate found there was enough Evidence to proceed to Trial.
Where is your evidence that the juror responsible for thevtrial being aborted was a holdout? That’s just Ed’s assertion without any factual foundation. It’s the sort of stuff he does all the time here.
He also asserted that Lehrmann was on $200k from when he was 19. He was 23 at the time of the alleged offence. So what is it? 200k at 19 or 23 as a senior adviser.
amortiser says:
December 8, 2022 at 1:04 pm
Where is your evidence that the juror responsible for thevtrial being aborted was a holdout?
Great question!
I was much interested in the idea that one of the panel not only had brought in extra curricular materials but had left them for others to find, which had the effect that the trial judge aborted the trial.
Given how high profile the case was, and the delay because of Wilkinson’s Logie speech, which the judge directly referred to, all of the jurors would have understood the stakes.
I presume the court supplies stationary for the panel, so what are jurors allowed to take in with them that could enable the secreting of contraband?
If deliberate or otherwise, it made for an interesting turn of events.
He also asserted that Lehrmann was on $200k from when he was 19. He was 23 at the time of the alleged offence. So what is it? 200k at 19 or 23 as a senior adviser.
He went into Brandis’s Office as an Adviser at 17, straight from High School.
He was a Senior Adviser to Brandis when Brandis retired in 2017, then joined unknown Senator Reynolds staff as a Senior adviser when he was only 20.
Either he’s very lucky, because no one woulda guessed in 2017 that Reynolds would be a Cabinet Minister in less than 2 years, or he [and Reynolds] was being fast tracked by someone?
Where is your evidence that the juror responsible for the trial being aborted was a holdout?
Logic, dear boy.
If the person concerned was voting Guilty, why the hell would he do anything to terminate the Trial before a Verdict could be brought down?
So, he was a Not Guilty holdout and he effectively won the day.
If the person concerned was voting Guilty, why the hell would he do anything to terminate the Trial before a Verdict could be brought down?
So, he was a Not Guilty holdout and he effectively won the day.
What about the antithesis of that?
During the trial, the complainant’s evidence was all over the shop.
In the jury deliberations, by introducing that risk to a successful conclusion, the prosecution lives to fight another day.
But what happened? The DPP decided against another trial because on the mental health of the complainant, but all the while stating that he thinks there is a case to answer.
Suddenly, the accused is guilty without proof and the complainant is able to commence legal proceedings in the civil courts for damages in the millions against her employer(s).
Suddenly, the accused is guilty without proof and the complainant is able to commence legal proceedings in the civil courts for damages in the millions against her employer(s).
The 2 events are unconnected.
Whatever the Verdict in the Trial may have been, Higgins was always going after Reynolds and Cash.
What about the antithesis of that?
During the trial, the complainant’s evidence was all over the shop.
Was it?
Then why did the Jury deliberate for over a week, since they heard the Evidence first hand and you didn’t?
In the jury deliberations, by introducing that risk to a successful conclusion, the prosecution lives to fight another day.
Not sure what you’re suggesting here?
Are you saying the Prosecution secretly had their own Juror and there was a Conspiracy to Pervert the Course of Justice?