There is really only one issue to look for next week when Walter Sofronoff gives the government of the ACT the report of his inquiry into the disastrous Brittany Higgins rape trial.
Will anyone take the fall for the now abandoned rape prosecution of Bruce Lehrmann?
Will blame be divided among the individuals who were targeted by the ACT government in the terms of reference it drew up for Sofronoff’s inquiry?
Or will Sofronoff take a broader approach, one that would enable him to consider the impact of legal structures that have been put in place by the government itself?
Before the collapse of this prosecution, some of those structures might have seemed unremarkable – or even beneficial.
But if the ACT is to avoid a repeat of this affair, policymakers might need to reassess the system they created.
Would it be useful, for example, to draw a distinction between those people who merely believe they are victims of criminal conduct, and those whose accusations have been tested and proven in court?
Some might dismiss this as nitpicking. But ignoring this distinction can erode the presumption of innocence, prejudice potential jurors and lead to bizarre outcomes.
Why, for example, did the ACT government leave the way open for Victims of Crime Commissioner Heidi Yates to accompany Brittany Higgins during media appearances when she was a complainant, but not a proven victim of crime?
What sort of signal does that send to potential jurors?
It might also be time to take another look at the future role of the Director of Public Prosecutions and whether it needs to focus exclusively on the core business of prosecuting.
One of the benefits of having an independent DPP is that it distances prosecutors from other arms of the state including the government which, by definition, is subject to political influence.
Yet in his submission to Sofronoff, DPP Shane Drumgold had this to say: “The current VCC, Ms Heidi Yates, and I are both executives in the ACT government and, as such, we both attend the joint executive committee regularly.”
Sofronoff has all the authority he needs in order to look beyond the conduct of individuals and identify systemic problems that might have contributed to the collapse of this prosecution.
The preamble to his terms of reference says the government is concerned to ensure that the framework for criminal prosecutions is robust, fair and respects the rights of those involved.
None of those qualities was apparent in the Lehrmann case.
It is unrealistic to expect Chief Justice Lucy McCallum to overcome structural unfairness caused by others of which she was unaware.
Drumgold, who is now on extended leave, conceded during the inquiry that he had misled the Chief Justice, albeit inadvertently.
That incident alone makes it difficult to imagine he could ever return to work.
It concerned a file note that was incorrectly described to the judge as a contemporaneous record of his discussion with television journalist Lisa Wilkinson.
A critical part of that note was not contemporaneous. It was not written immediately after his discussion with Wilkinson. It was an addendum written by Drumgold after Wilkinson’s speech at a Logies ceremony caused a furore that delayed the criminal trial.
Allegations were also made that Drumgold attempted to withhold police documents from Lehrmann’s defence lawyers, read Higgins’ confidential counselling notes and undermined Lehrmann’s presumption of innocence.
After the first trial was aborted because of juror misconduct, Drumgold declined to run a second trial but said he was still confident he could secure a conviction against Lehrmann.
His difficulties continued at the inquiry. Within 24 hours he changed his mind and withdrew an accusation that it was possible, if not probable, there had been a political conspiracy to prevent the case against Lehrmann from proceeding.
Anyone who watched the webcast of this inquiry could not help but be impressed by Sofronoff’s fairness and calm determination to uncover the facts.
But the seriousness of this affair is hard to overstate: the criminal justice system of the ACT failed at its core task.
It was incapable of providing Lehrmann with one of the most important rights that is supposed to be available to all Australians, regardless where they live: the right to a fair trial.
That right can protect individuals not just from the immense power of governments, but from those who are prepared to bypass the law and impugn others in the court of public opinion.
Before the trial was aborted, the prosecution case was in trouble. Key elements of Higgins’ testimony had been called into question.
By declining to run a second trial, Drumgold deprived Lehrmann of his day in court. And that means this affair will never be resolved.
It will divide the community into those who side with Lehrmann and those who side with Higgins. That division can never be overcome.
But there is a subset of disputes that are likely to be resolved in next week’s report. That should put an end to arguments that broke out during the inquiry as key players sought to offload odium on each other.
● Defence barrister Steven Whybrow had blamed Drumgold for what he said were breaches of his duty as an impartial prosecutor.
● Lisa Wilkinson sought to offload odium to Drumgold on the ground that he failed to explicitly instruct her not to make the Logies speech that delayed the trial.
● Drumgold sought to blame the AFP for what his counsel, Mark Tedeschi, said was its bizarre attitude to the Lehrmann prosecution and its failure to charge more people over sexual assault complaints.
