A new Winslow Boy case


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.


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duncanm
duncanm
December 5, 2022 7:44 am

The DPP has acted disgracefully — as you point out, where is the presumption of innocence?

Christine
Christine
December 5, 2022 7:45 am

I loved that film

Tony Taylor
Tony Taylor
December 5, 2022 7:46 am

There have been plenty of tweets, some from blue ticks, saying we’ve got to change the law, but no one suggested how.

Dot
Dot
December 5, 2022 7:51 am

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.

WolfmanOz
December 5, 2022 8:51 am

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.

thefrollickingmole
thefrollickingmole
December 5, 2022 9:23 am

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.

thefrollickingmole
thefrollickingmole
December 5, 2022 9:27 am

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.

Old School Conservative
Old School Conservative
December 5, 2022 10:00 am

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.

Cassie of Sydney
December 5, 2022 10:11 am

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.

tommbell
tommbell
December 5, 2022 10:54 am

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.

flyingduk
flyingduk
December 5, 2022 12:39 pm

This is unacceptable in a country that has the common law doctrine of innocent until proven guilty at the heart of its justice system.

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

C.L.
C.L.
December 5, 2022 12:41 pm

The Brittany Higgins sexual assault case – now aborted – has left in legal limbo the accused, Bruce Lehrmann.

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.
C.L.
December 5, 2022 12:53 pm

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.

Cassie of Sydney
December 5, 2022 1:45 pm

“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.

Entropy
Entropy
December 5, 2022 2:32 pm

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.

it is the interests of the ALP government for the payout to be as large as possible.

Entropy
Entropy
December 5, 2022 2:35 pm

The process is the punishment, regardless of guilt or innocence.

billie
billie
December 5, 2022 2:39 pm

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?

C.L.
C.L.
December 5, 2022 4:10 pm

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.

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?

johanna
johanna
December 5, 2022 4:23 pm

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.

tommbell
tommbell
December 5, 2022 4:26 pm

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?

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.

Salvatore, Understaffed & Overworked Martyr to Govt Covid Stupidity

Bar Beach Swimmer says: December 5, 2022 at 1:36 pm
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?

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.

Shy Ted
Shy Ted
December 5, 2022 6:39 pm

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.

Old bloke
Old bloke
December 5, 2022 8:40 pm

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.

duncanm
duncanm
December 5, 2022 8:55 pm

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

The events surrounding the criminal allegations made by Brittany Higgins against Bruce Lehrmann are a lamentable example of what happens to the justice system when the principles of prudence, discretion and sobriety of judgment are set aside in favour of publicity, politics and rank ideology.

From the start of this sorry affair, people who should have known better have inserted themselves into the fray, usually to the great detriment of both parties. You would hope that with the conclusion of proceedings against Lehrmann, who has always maintained his innocence, this practice would have slowed. If anything, it has quickened. All the while, Higgins has suffered a serious decline in her mental health in circumstances that can only be described as tragic.

Consider the remarks of ACT Director of Public Prosecutions Shane Drumgold, SC. On announcing the charge against Lehrmann was to be dropped, Drumgold praised the “bravery, grace and dignity” of Higgins, and asked that she be given time “to heal” after facing “a level of personal attack that I’ve not seen in over 20 years of doing this work”.

While this may be true, there is a serious question as to whether it is appropriate for a DPP, who has a duty to the administration of justice rather than to individual complainants, to make public remarks of this kind. Drumgold said nothing of the presumption of innocence or whether Lehrmann may also need time “to heal”. Nor should he have. And that is the point.

And what of the substance of Drumgold’s observations? Has he ever seen a sexual assault complainant consciously eschew the protection of anonymity that is legally available to every sexual assault complainant in ACT criminal proceedings? If the answer is “no”, or “only on a very limited number of occasions”, Drumgold’s placement of Higgins’ experience on a spectrum of 20 years of practice is meaningless.

The fact is there was nothing normal about the Lehrmann trial, which occurred under a glare of unceasing publicity. Such matters are invariably tried in conditions of anonymity, which is a statutory right afforded to the complainant.

There have been other public servants whose conduct in relation to these matters has been questionable. Scott Morrison’s notorious parliamentary apology to Higgins plumbed a new depth. Whatever political advantage Morrison perceived, the potential prejudice that could have been occasioned to a fair trial by a person of the prime minister’s stature in making a comment of this kind, before a jury was even empanelled, is impossible to miss.

This occurred against the backdrop of alleged “political interference” in the investigation stage of the Lehrmann case, according to the ACT police manager of criminal investigations, Detective Superintendent Scott Moller (who says he would not have charged Lehrmann, but the decision was apparently taken out of his hands). This chilling allegation by a senior AFP officer warrants a full accounting of the “political interference” being referred to, particularly given the implicitly political context in which the trial unfolded.

And what of Tanya Plibersek? On the day of Drumgold’s announcement, she published the following comment on social media: “Survivors of sexual assault know that convicting perpetrators is the exception, not the rule. This has to change.”

There is enough plausible deniability in this comment to avoid the imputation that she was referring directly to Higgins and Lehrmann, but only just. And there is enough ambiguity in the comment to delight a receptive crowd without the inconvenience of condescending to a serious policy discussion.

Is she calling for law reform? If so, what precisely is she suggesting given the strong procedural protections that are now offered to sexual assault complainants in criminal prosecutions? Perhaps an erosion of the criminal standard of proof which has been the cornerstone of civilised society for centuries? As a minister of the Crown, Plibersek might humour the public by explaining exactly what she meant.

Perhaps at the same time she might also use her public reach to explain that, aside from the legal availability of anonymity to all sexual assault complainants, such persons may never need to set foot in a courtroom at all – as a statutory starting point, such evidence is given from a remote witness facility.

And before we grant an audience to ambiguous calls for “change”, the public ought to be reminded that Higgins’ experience is not the experience of sexual assault complainants generally. This is not to suggest that Higgins wasn’t perfectly entitled to take the course she took, but the public must be informed that Higgins’ name was only ever published because she specifically chose to approach the media with her allegation.

The broader point is this – superficial public utterances by persons in high office do not advance the administration of justice in any respect, and usually have the opposite effect. They do not set a foundation for legitimate discussions of law reform, which has occurred in this area by quantum leaps over recent decades in any event. Instead, they perpetuate outmoded stereotypes of our justice system and perhaps deter victims from coming forward. And there is apparently no consequence to any of it.

Lisa Wilkinson puts at risk a criminal trial in the ACT Supreme Court – and what institutional consequence have we seen for her?

Drumgold lauds the “bravery” of a person whose allegation remains unproven, immediately following the execution of his duty as a detached Crown prosecutor – and what becomes of that?

Higgins delivers a speech on the courthouse steps impugning the criminal justice system while a prosecution is on foot in which she is the complainant – who makes the decision as to whether she will be prosecuted for contempt; Drumgold?

Morrison uses parliamentary privilege ahead of a highly publicised criminal trial – where is the consequence for that?

And cabinet minister Plibersek speaks of “survivors” and “perpetrators” before the din of Drumgold’s press conference has even died down.

A rot has taken hold at the core of our institutions. But it has nothing to do with the state of the law, and everything to do with the fealty of our public officials to the time-honoured principles upon which our society was built. Worse, there appears to be a total lack of consequence and accountability when there may be cause to investigate whether those principles have been hung out to dry. If you want to talk about change, that would be an excellent place to start.

Steve Boland is a Sydney-based barrister.

duncanm
duncanm
December 5, 2022 8:57 pm

Ah – I see Gray Connolly has tweeted this, and its been picked up already.

duncanm
duncanm
December 5, 2022 9:05 pm

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.

Ed Case
Ed Case
December 5, 2022 9:09 pm

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.

Ed Case
Ed Case
December 5, 2022 9:26 pm

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?

H B Bear
H B Bear
December 6, 2022 12:04 am

Shy Ted at 6:39

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

Nothing surer. Particularly when it is doled out through shortlisted panels.

Christine
Christine
December 6, 2022 9:34 am

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

Delta A
Delta A
December 6, 2022 5:20 pm

An excellent post, BBS.

To my shame, I had never heard of the Winslow Boy. Thanks for remedying this.

Ed Case
Ed Case
December 6, 2022 7:44 pm

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.

Ed Case
Ed Case
December 6, 2022 7:47 pm

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.

Ed Case
Ed Case
December 6, 2022 8:00 pm

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.

Rafe Champion
December 8, 2022 7:03 am

Great contribution BBS, sorry I wasn’t checking the Cat daily and missed it when it first appeared.

Super thread!

amortiser
amortiser
December 8, 2022 1:04 pm

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.

Ed Case
Ed Case
December 9, 2022 4:15 pm

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?

Ed Case
Ed Case
December 9, 2022 4:20 pm

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.

Ed Case
Ed Case
December 11, 2022 7:40 am

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?

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