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Queanbeyan Today 17°/21° | Tuesday, March 5, 2024 | Digital Edition | Crossword & Sudoku

Might be best to settle before the judge decides

Brittany Higgins arrives to give evidence at the Federal Court in Sydney. (AAP Image/Bianca De Marchi) 

“If the defence had a ‘knockout’ blow they had to raise it with Bruce during their cross-examination. That never happened. We have seen their best and it was boring. It follows that they have no ‘we-gotcha’ evidence.” Legal columnist HUGH SELBY reports from the new show at the theatre of litigation. 

CHRISTMAS dawn in a home with small children brings quick feet pattering, and yells of excitement. Santa has been. This is the happy theatre of make believe, of unrestrained innocence. 

Hugh Selby.

Not so in the adult theatre of litigation. It is devils with torment, not Santa with gifts, that make deliveries.

Where some see justice, I see a puppet show: especially now in the recreating of a play about what may, or may not, have occurred one night some years ago in our national parliament building. 

In the biggest early summer show in town there are two key puppets, Bruce and Brittany and, so we are told, a large number of others – some well-known, some not – but all moved here and there by skilled advocate puppeteers. 

In 2022, we had the Canberra tragedy played out on a criminal stage. It ended, unexpectedly, with no resolution. There was neither a day of reckoning nor a new dawn for the principals.

What was surprising was the chief puppeteer losing his job in mid-2023 after an inquiry for which he called. How fickle is fate.

Now in late-2023 the tragedy has been refashioned as a savage farce played out on another stage in another town. In this new show, about to enter its third week, there has been nothing inspiring, redeeming, uplifting, or remorseful from anyone. It has been, let us be frank, a play with no soul.

If anything is prevalent it is the despair-inducing atmosphere of the dementors removed from Hogwarts and let loose among us.

“Punch and Judy”, a simple, comedic story, played out over centuries, needed no interpreter. It was fun. One did not walk away from that show carrying the burden of despair. 

Contrast that with the daily media reporting of the puppets in our modern play being caught out for this or that error – be it inadvertent or deliberate (a choice that, thankfully, is not for the media or us). 

The mainstream reporters see the puppets, but they are blind to the strings being pulled and released by the puppeteers. They report nothing of what lies beneath. 

Because the defendants are asserting that Bruce raped Brittany the onus is upon them to prove that claim on the balance of probabilities.

Bruce, as the plaintiff, told his version first with his puppeteer (with whom he also worked at the 2022 criminal trial). Then he was cross-examined. This, not unexpectedly, revealed shortcomings; how important is for the trial judge to decide.

None of those shortcomings took him into the room where fair Brittany was found distressed and alone.

Critically the cross-examiner was obliged by a “rule of fairness” to raise with Bruce any point about which one of the defence witnesses might later give evidence and which was at odds with Bruce’s version.

Put simply, if the defence had a “knockout” blow they had to raise it with Bruce during their cross-examination. That never happened. We have seen their best and it was boring. It follows that they have no “we-gotcha” evidence.

What they have got – front and centre – is Brittany, a puppet of changeable faces, garbs and moods. 

She can walk a straight line better than many drunks. 

She is no Chris Masters (one of the journalists whose perseverance destroyed the military valour reputation of Ben Roberts-Smith), nor is she like anyone who alleged inappropriate conduct by actor Craig McLachlan. His 2022 case against the media who reported the allegations went so awry he had to pull the pin.

This case – unlike Roberts-Smith and McLachlan – is mired, stymied, in the memory and character limitations of the principal puppets. It is down to trench warfare with the parties in their dugouts slugging it out, with no sign of how a meaningful breakthrough can occur.

That is bad news for the defendants because they have the onus of proving their case. Every glitch uncovered – and there have already been some – in Brittany’s story diminishes their chances of success. They know it.

Bruce is not a man of means. Were he to lose this case then the order that he pay the defendant’s legal costs will likely lead to his bankruptcy and no payment to the winning side.

The media defendants, however, have the means both to pay any damages awarded to Bruce and to pay his legal costs.

What is unknown is the judge’s attitude. Does either party want to find out when there is an evidential, death-by-a- thousand-cuts, stalemate?

There are good reasons to keep this case away from a judge’s carefully crafted reasons for decision. It will include findings about believability – possibly very damaging. Probably better to negotiate a settlement, the terms of which are couched to be reasonable and pragmatic.

I don’t imagine that the two principal puppets will be especially happy; however, each has to consider other potential litigation and their career prospects.

The puppeteers, however, will be thrilled. Even after the tax man cometh, it will be a pot-of-gold start to 2024. They alone can laugh.

Hugh Selby is a former barrister. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.


Hugh Selby

Hugh Selby

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