What we heard in the silence that screamed 

“Silence – that’s the response by those ranks of people whose careers are carried on words, spoken and written. They were, one and all, silent. That was a profound silence and we need to ask what it means,” writes “CityNews” legal commentator and former barrister HUGH SELBY.

TWO of the most telling questions made during the Board of Inquiry into how police, prosecutors and a victim support service handled allegations made by Brittany Higgins against her former colleague Bruce Lehrmann, have been from the Commissioner Walter Sofronoff KC.

One was his wrap up question to Director of Public Prosecutions Shane Drumgold SC, following an effective cross-examination by advocate Sue Chrysanthou SC. Mr Drumgold’s answer to the question was fatal.

The second was the commissioner’s almost throw away (he has the ability to make grenades look like Easter eggs) question to the rows of lawyers in front of him: would any of them be submitting that Mr Lehrmann should not have been charged, that the case should not have gone to trial?

Silence – that’s the response by those ranks of people whose careers are carried on words, spoken and written. They were, one and all, silent.

That was a profound silence and we need to ask what it means.

Bear in mind that since day one we have heard repeatedly that the investigating police had concerns both as to the sufficiency of evidence, and the credibility of key witnesses.

It’s possible that information in documents before the inquiry not read by us, together with the spoken evidence next week, will show that investigating police concerns were less than they now seem.

However, for the purposes of the rest of this article, please assume that present impressions remain undisturbed. That is, we will imagine that what we saw and heard in the public hearing is all that there is: how then does this affect the future of our criminal justice system?

Denunciation of demons

Demonisation and the denunciation of demons is an age-old human trait. You don’t think so? Let me remind you of the denouncers of witches and witchcraft, the proponents of antisemitism, Senator Joseph McCarthy’s 1950s anti-commie campaign that destroyed so many careers, and Mary Whitehouse and her “Christian decency” moral campaign.

Today’s top-of-the-pile denouncers are those who allege they have been sexually violated. The truth or otherwise of the allegation is not the issue: it’s the nature and impact of the expected response that should concern us.

Consider for contrast the unremarked lot of those who survived years in the World War II concentration camps or more recently, years in our infamous concentration camps, euphemistically called refugee processing centres. Out of sight and mind. No incessant media campaigns for them.

Human nature doesn’t change, so we are doomed to repeat our errors. During World War I, the Order of the White Feather was a campaign to shame men into signing up, thus associating the white feather with cowardice. That widely countenanced public shaming is the antecedent of today’s trolling and cancel culture.

DPP Drumgold’s assertion that our police have been “undercharging” (that is, not charging at all, or charging too leniently) reflects a prism that the “Denouncer” is pure of heart and the attacked is not. 

A criminal charge should reflect an assessment not just of the quality of the gathered facts, but also the believability of each person who “carries” those facts. There’s nothing new or unusual about this. Every day of our lives we weigh up what we are told and who is telling us. Then we decide whether to accept or reject it. 

In the Higgins’s saga it is not only Ms Higgins and Mr Lehrmann who have had to cope with the “facts assessment” circus that has followed that night at Parliament House. One of them is rumoured to have become wealthy as a result. The other seems able to run litigation on multiple fronts, so there must be funds, his own, or that of backers.

Please spare a thought for those competent police who are the collateral damage. Instead of thanks and gifts they have been subject to allegations of being incompetent, boofheads, but above all else – out of touch.

Silence ensures survival

Those lawyers on the screen during the inquiry have done well career wise, through talent and hard work. Some of them might be hoping for appointment as a judge. They want work, good-quality work. 

Given our assumptions each of them would be mad to have answered that question with anything other than silence. If an advocate is seen as “suss” the phone does not ring, queries as to availability dry up. Politicians appoint judges. I need say no more.

This is not a new phenomenon. During World War I, the Irish patriot Roger Casement was on trial for treason. No English senior counsel would represent him. An Irish silk finally agreed, giving rise to the “cab rank” rule: if you take work in an area of law, eg criminal defence, then you should take a case that is offered, no matter what your private thoughts and aspirations. There are so many let outs that the rule is weak, but the concept remains admirable.

If I had been at that bar table I would have chosen silence. You would, too.

That leaves Commissioner Walter Sofronoff KC to answer his own question or deftly kick it away into the long grass. Putting aside the assumptions for this article, I hope that in the coming days and thereafter there is more evidence to help him. 

“CityNews” legal commentator and former barrister Hugh Selby is writing running commentary on the Sofronoff Inquiry’s public hearings, focusing upon the advocacy and witness performances. All the “CityNews” coverage of the inquiry, including his daily reviews, are here.