Justice system must protect all

proposals designed to help achieve justice for victims of sexual crimes are made with good intentions. but these reforms could permanently undermine our justice system in a way that harms everyone. BY Amanda Stoker.

Now that Senator Linda Reynolds has broken her silence about the allegation of rape made by Brittany Higgins, we finally have all sides of the story – and with it a chance to reflect upon the lessons to be taken from this sordid chapter.

Our society’s understanding of violence against women has transformed in the last decade. Many of the changes have been positive, removing shame, and providing more understanding for those who endure horrific crimes.

But there are downsides too. Reducing complex factual circumstances with life-changing consequences for all involved to a simple hashtag is apt to turn good intentions into injustice.

I don’t defend or condemn anyone in this saga – we simply don’t have the clarity a verdict after a fair trial permits.

What I do know is that the push for us all to blindly “#believeher” (or any witness) rather than carefully assess the relevant evidence is prone to cause great harm to those defendants who are innocent.

In our sincere desire to ensure that victims are treated with respect and dignity and are able to achieve justice, so-called “reforms” have been proffered that would permanently undermine our justice system in a way that harms everyone.

Our justice system is built on the important but confronting principle that 100 guilty people should walk free rather than one innocent be convicted.

Every time we erode the presumption of innocence, the right to face one’s accuser or the ability to fully test the evidence presented against a defendant, we increase the number of innocent people who will be punished for crimes they didn’t commit.

The criminal justice system isn’t perfect. There are cases in which its adversarial nature has traumatised victims or failed to convict those who have committed abhorrent crimes.

The public discussion and debate about the treatment of complainants and defendants in sexual assault cases, which was prompted by the now aborted prosecution of Bruce Lehrmann, has already had a significant impact on the rights of future accused people more broadly.

The ACT is proposing allowing the re-use of recorded complainant evidence from a first trial in subsequent proceedings. That would erode the ability of an accused to test all the evidence, or expose inconsistencies in versions that can be vital in cases that are one person’s word against another’s – as too many of them are.

In Queensland, Labor is committed to abolishing the rules that prevent an accused’s name from being revealed until after committal for trial – removing a small protection against the harm done to an accused’s reputation from adverse publicity in cases so weak that they don’t even meet the standard necessary to go to trial.

Removing this protection would increase the risk of prejudice to a person unfairly accused, without improving the experience of a complainant whatsoever.

That such prejudice is allowed for some other offences is hardly an argument in its favour. And rather than pursuing shortcuts to conviction, the means to safeguard a defendant’s right to a fair trial, the presumption of innocence and to test the evidence before juries unpolluted by media activism must be preserved.

That should include the right – not afforded to those accused in some parts of the country – to elect to have a judge-only trial when there is a real risk that media sensationalism has unfairly prejudiced the jury pool.

As the now aborted Lehrmann prosecution demonstrates, timely reporting to authorities and investigation can be key to collecting reliable accounts, quality physical and medical evidence, and CCTV and other data to corroborate the accounts of witnesses.

Early reporting makes for the strongest possible case and avoids the destruction of key evidence. It guards against the fallibility of memory and perception. That translates into more guilty pleas, swifter convictions and fewer perpetrator acquittals. It means fewer hung juries, reducing the frequency of the trauma of a retrial. There are savings for the taxpayer, too.

Importantly, it means prospective repeat offenders are held accountable sooner, reducing the chance of harm to others.

Queensland’s second Hear Her Voice report observed that it was fear of reprisals, fear of being dismissed, and fear of combative interrogation styles by police that most deterred victims from making timely complaints.

Yet, these fears can be eased by a clear and robust message from governments and the community that those who report early will be met with support and assistance, not shame.

An early report is a lot to ask of a person immediately after experiencing serious trauma. But it is far better than the long-term trauma victims face by navigating the justice system without the benefit of a proper, timely investigation and facing the prospect of emerging from it without a conviction.

Our nation has never tried harder for, or spent more on, women’s safety. The previous Coalition government alone committed a record $1.3 billion to this cause in its last budget.

This reflects a sincere desire to deliver justice to victims of sexual crimes.

But that won’t be achieved by dismantling the protections that exist for all, in the serious scenario that we might be falsely accused of a crime.

Amanda Stoker is a former LNP senator for Queensland and a distinguished fellow of the Menzies Research Centre.