‘In the justice space, we converted the desirable aim of taking seriously those who make complaints of being forced into unwanted sexual acts into the prejudiced assertion that what they allege is true,’ writes legal affairs columnist HUGH SELBY. 

It was odd news. Following her party’s clear win in the Federal by-election one of Pauline Hanson’s volunteers posted something that was taken – rightly or wrongly – to praise dead police killer Dezi Freeman.

When asked to take some action against this volunteer, she demurred – a response that has led those who rue her success to be harshly critical.

How silly. Prejudice and bigotry are the beating heart of Pauline’s success. She’s not going to bite the hands that feed her.

Bleeding-heart demonstrators, wrong skin colour, wrong God, vile deviants, refugees, welfare cheats, anti-State – so many attractive prejudices. 

Prejudice has a much longer shelf life than news.

Fellow travellers of the spruikers of prejudice are the woke folk – those who use one or other current prejudices as a barter currency to purchase success. Prejudice loves the narcissistic impulse.

In the justice space, we converted the desirable aim of taking seriously those who make complaints of being forced into unwanted sexual acts into the prejudiced assertion that what they allege is true. 

The certainty of injustice to the innocent flows from the volatile mix of real and confected outrage, the accelerants of exaggeration, supposition in place of provable facts, and the frisson with which we touch the edges of our taboos.

Yes, there are cases of truly awful assaults, but where it is “word on word” then truth after the fact is a guessing game, unless there is other evidence from one side or the other.

The game is played through the filters of taboo words and taboo acts. It’s a game too often restricted to the end point of sexual activity with scant attention to all that went before. 

Sexual intimacy is not the same as a punch up in a pub: the notion that the two can be equally easily described in a public place – the courtroom – to strangers (jurors, lawyers and the public gallery) is nonsense. That’s not justice. It’s a mockery of justice.

The following cases show how prejudice thrives.

Case 1 – A set up

She was so believable. The jury were horrified at what her husband had done to her, how often he’d done it. They looked at the accused with loathing. 

They and the judge were impressed by her courage, her preparedness to share those awful events with them. Such an inspiration to be able to tell it at all. 

No one was concerned that these fiendish acts suddenly occurred after many years of nothing untoward.

“Did you know he printed your emails?” was the first, softly phrased cross-examination question from his advocate to her. The judge interrupted, “Who is “he”? The jury shouldn’t have to guess”. 

“Indeed they mustn’t your honour. ‘He’ was, is her lover”.

Turning partly towards the victim: “Well, did you know?”

She didn’t.

“Have a look at this sheet of paper. Read it silently and tell us when you have done that”.

“You sent it?” She had, as she admitted, sent many, many email messages to her lover.

“Have a look at this sheet of paper. Read it silently and tell us when you have done that”.

“He sent it? To you? You read it? You remember it?” 

He, her lover, had and she remembered – so many of them, too.

They all became evidence. The judge asked if there were copies for the jurors and whether they should have them now. “There are”, said the advocate, “but not yet.”

“Your lover was your best friend’s husband?” 

“Yes he is, was.” 

“And your lover had been a close friend of your husband, the accused here?”. 

“Yes” to that also.

“Please show the witness the document marked ‘A’. Thank you. Read it to yourself. You have. Good. You sent it to your lover shortly before you went to the police? Good, now read those emailed words of yours aloud please”.

“I am going to get him out of the way. I found this online advice on what to tell the police”.

“And this advice, this advice you found, was it in this little online handbook that I hand you now?” “Yes”, said even more softly than the advocate spoke.

“Say that again so that everyone can hear it”. “Yes”. “Louder, louder please”. “Yes”.

“You followed that advice didn’t you? “. “Yes”. “And here we are today.” “Yes”.

Jurors wanted to believe her – that’s today’s prejudice – and they did until they couldn’t.

Even so it was some days before the accused had to stand when the jury foreperson announced their decisions, six of them, one after the other. It was “not guilty” on the first. His body tensed. 

“Not guilty” on the second. He was rigid now. 

“Not guilty” on the third. He shook.

“Not guilty” on the fourth. His eyes rolled upwards. 

“Guil..sorry not guilty” on the fifth. There was total stillness.

“Not guilty” on the sixth and final. And as though the relief had broken his heart he collapsed in the dock. 

It was not brilliant advocacy that saved him. It was not his God either. What saved him was that her lover printed the emails, storing them under the driver’s seat where his jilted wife found them when she borrowed his car to take the kids to school on a rainy day.

Case 2 – ‘We don’t convict’

Life had not been kind to any of them. Mum had recurrent bouts of mental illness that led to her being repeatedly hospitalised. Dad was tough as nails, an itinerant worker, and a repeat prison inmate.

The three children grew up to be adults with survival problems that showed no signs of going away.

She’d been sexually assaulted as a child by dad when her siblings were taken to see mum in hospital. She told mum when she came home: mum took the three kids and they went to a refuge. She had no more contact with dad.

Mum made a timely complaint to police about dad’s sexual assault of the child, but then withdrew it. Some years later the same complaint and withdrawal happened again. It was only after mum died that, now an adult, the “victim” pursued the matter.

When she finally got to give her account of what he’d done a lost childhood ago it was a searing experience for every person in that courtroom.

She wept, oh how she wept. Her voice came and went and came again. She refused to stop: it was her story, to be told now, by her to this jury and she would do it. If there was a “ground zero” in her life then that event was it – burnt into her psyche.

She was so believable. Cross-examination did not damage her or her story. He did not give evidence. The jury took only a few minutes to acquit him. Never let facts stand in the way of a prejudice.

She was inspiring in defeat. “Now he knows”, she said, “knows my story and how he made it. I am stronger. His spending more time in prison would achieve nothing.”

Case 3 – Who cares?

They had sex in a suburban park in broad daylight. The foreplay was active by both. There was no violence to the body, clothes or anything else. The passers-by must have noticed but they walked on and she made no complaint.

She made no complaint until some weeks later she’d missed her period. Even then she didn’t complain – that only happened when she told a sibling who was outraged that she was seeking an abortion. In their family, in their culture, she was now seriously damaged goods. She went to the police.

Before the trial, a newspaper ran big photos, labelling him a monster. The law kept from the jury that in her social media before the event she made it very clear that she was keen on men with his skin colour. Hers was pink. His wasn’t.

He gave evidence. He was not bested in cross-examination. He was the only person in that courtroom who was not pink. The pink jury took only minutes to convict him. Another triumph for prejudice.

Case 4 – Prejudice trumps justice

They were teenage lovers, bodies wrapped in each other at his place – in his bed at night, or on the lounge during the day when his single working mum was out.

She came and went in her car as she liked. He couldn’t drive. He was an apprentice. She was supported by her parents.

Then she replaced him with a same-sex relationship.

She told the police he had sexually assaulted her multiple times. Arrested and charged, he lost his job.

He showed his first lawyer text messages between them on the night of their last meeting. The lawyer said they were useless. So he put them away and forgot about them for over a year.

She told police – and the jury – that she’d been out with girlfriends and that she discovered too late that she had no keys and so couldn’t get home. So, she said, she then contacted him and he invited her over and assaulted her.

The truth was otherwise. She’d texted him repeatedly from 6 pm, before she went out and while she was out, setting up her coming to his place at midnight.

The jury acquitted on some charges but was deadlocked on others. The prosecution decided to have another go.

He found those forgotten text messages. The prosecution was given copies and said, “So what?”.

At the retrial, before a judge alone, the police recounted that she’d come to the police station with her phone some weeks after he was charged. They extracted all the messages – but using a system that does not show deletions.

Only the messages that he still had were missing from her phone. She had lied to police, lied on oath to the court, and she had destroyed material evidence.

An acquittal was inevitable. However, the judge avoided any criticism of her and, instead, said in writing that he’d probably done it, but not to the criminal standard.

Prejudice flows from everyone, trumping justice.

He lost nearly two years of his life. She lost nothing. No reason to apologise. Prejudice spares no one.

Hugh Selby is the CityNews legal columnist.