“The government will be congratulated, at our expense, for an unnecessary inquiry. The Opposition, having called for an inquiry, will rue that decision because there is nothing in it for them: no publicity and no votes,” writes “CityNews” legal columnist HUGH SELBY.

THE Barr government has announced that there will be an early 2023 Board of Inquiry into the fiasco that flowed from the conduct of certain individuals that lead to the recent trial (and eventual discharge of the jury without verdict) of Mr Bruce Lehrmann following allegations made against him by Ms Brittany Higgins after a boozy celebration.

The government’s press release includes the following: “The ACT government is currently identifying an eminent legal expert to conduct the Inquiry. The ACT government will determine the terms of reference and key timeframes will be finalised in consultation with that expert next month.”

A Board of Inquiry is governed by our Royal Commissions Act.  What is important about that kind of inquiry, as distinct from some other inquiries, is that the Commission can compel the attendance of persons, compel them to answer questions, and compel the production of materials (be those electronic or paper records).

Before setting up such a powerful Inquiry any government must answer the following four basic questions:

1. What is the worst outcome of this inquiry from the standpoint of our voter support?  If there is a bad outcome for us, then can it fade away before the next election?
2. What is our preferred outcome and is it feasible?
3. Who do we appoint as the Commissioner or Commissioners, and how do we ensure that he, she or they are perceived by the public as both competent and independent?
4. How narrowly can we draft the terms of reference so as to minimise damage to our electoral standing, but attract a Commissioner or Commissioners of proven repute?

Let’s turn to each of those questions as they apply to this “How to prosecute” inquiry.

1. Worst outcome

The Barr government has read the tea leaves or put its collective finger in the wind and decided that an “arms-length” inquiry is the best way forward. No doubt they have consulted widely, and especially with those who set up such an inquiry and came to regret it elsewhere in Australia.  They have made the political decision that while there is no way they will have an inquiry into any of that tram line, elective surgery waiting times, shortfalls in educational resources, etcetera, this inquiry is safe for them: there will be no electoral backlash.

2. Preferred outcome

Their preferred outcome is that they are congratulated for allowing the strong winds and shining light of a powerful inquiry to range over the police investigation, the decision to go to trial, the prosecution becoming the advocate for the complainant instead of the community, the actions of the Victims of Crime Commissioner in confusing advocacy for a proven victim with “in your face” support for the complainant, the secrecy around the second trial being abandoned and there being no prospect of a second trial, the alleged statements by the prosecutor that police were “pro defence”, and a seeming contradiction between a mental health need to avoid giving further evidence while being, apparently, quite capable of settling multi-party litigation on terms not to be disclosed.

To all of those might be added how hard, but unsuccessfully, the trial judge tried to keep all the jurors from letting their fingers choose “forbidden fruit” search terms on their devices, and how flagrantly some media personalities were prepared to “create news” rather than report it. Does the law need to catch up with our world?

It’s at this point in the discussion that every one of us should be asking: “Why are we spending ratepayers’ money on this Inquiry? What is there to be examined and criticised that isn’t already bleeding obvious?”

• It’s in the public space that the police carried out a thorough investigation, that they did not recommend charges, and that the prosecutor went ahead anyway. That’s good police work, and the notion that it could be “pro-defence” is ludicrous.
• Criminal law practitioners are imbued with the notion that a prosecutor is a “minister of justice”, acting for the community, not individuals, to bring to the courts those matters where, objectively, there is a sufficient body of evidence that a conviction is a reasonable outcome.
• An important factor in establishing support services for complainants and proven victims was that prosecution agencies can assist with witness preparation of a complainant, but must not lose sight of their primary responsibility to us, the community.
• Complainants may be permitted to have support persons with them when they give evidence. This is especially important for child witnesses.  However, such support persons are not public supporters of the complainant. They should not draw attention to themselves or the complainant.

The government will be congratulated, at our expense, for an unnecessary inquiry. The Opposition, having called for an inquiry, will rue that decision because there is nothing in it for them: no publicity and no votes.

3. Who will it be who is well paid to state the obvious?

If this Inquiry goes ahead then the Commissioner/s must come from interstate, must have excelled at both prosecution and defence work, and must be permitted to choose their “counsel assisting” (the experienced advocate who is placed between the parties and the Commissioner/s, and manages the process of calling evidence and submissions from all those parties appearing at the Inquiry).

4. How wide should be the terms of reference?

Any inquiry needs to be able to address each and all of the issues mentioned above. But as well it needs to look into the culture within our prosecution office and that of the Victims Commissioner. How can there be a return to correct thinking?

There’s a saying from around the 1690s of “marry in haste, repent at leisure”.  It is now often rewritten as “act in haste, repent at leisure”.  Both sayings are apt for this fiasco. Those who saw “opportunities” in this story from the moment that the allegations were first publicised acted brashly and unwisely. They have been “caught out”.

Our codes of conduct for prosecutions reflect generations of experience and the slow development of guiding principles. Those who cast them aside may now bear the humiliating consequences that they were quite happy to visit upon an accused who was, and is, entitled to the presumption of innocence.

But, and but again, do we need a public inquiry?  I think not.

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