Australian Politics
Sunday, May 21, 2023
‘Verdict first, trial later’: rule of law under threat, says Bruce Lehrmann’s lawyer Steven Whybrow SC
The disgraceful way feminism can pervert justice. If feminists get a man in their sights, he is in great danger -- innocent or guilty
The presumption of innocence and the right to due process have been dangerously warped by the #MeToo movement, Bruce Lehrmann’s lawyer Steven Whybrow SC has claimed, in his first interview since Mr Lehrmann went on trial over Brittany Higgins’ rape allegations.
“This was ‘Alice in Wonderland’. Sentence first or verdict first, trial later,” Mr Whybrow says of the pre-trial publicity around the case.
“There was so much material out there that was just simply ‘he’s guilty’ and we’ve just got to go through this process of a trial. I saw that as a significant undermining of the rule of law and the presumption of innocence and due process.
“We all know this happens all the time: this guy’s been accused of this, so therefore it happened. And along the way, anybody who tried to argue the contrary narrative was treated as somehow morally deficient.”
Mr Whybrow said that if there was to be a debate about the presumption of innocence or whether an accused person should not have a right to silence, “those things should actually happen in an informed way publicly, rather than this insidious suggestion that ‘that’s what the system is’”.
“But it’s not good. It’s not right,” he added.
Mr Whybrow’s comments came as Mr Lehrmann revealed for the first time that when he tried to get legal assistance for his defence, Legal Aid ACT insisted it would not allow Ms Higgins to be challenged in court as a liar, but simply “perhaps mistaken about versions of events”.
Mr Lehrmann told The Weekend Australian he sacked Legal Aid ACT after the agency demanded he adopt a conciliatory defence strategy that was completely at odds with his account of the events that occurred in senator Linda Reynolds’ ministerial office in the early hours of March 23, 2019.
Mr Lehrmann said a solicitor at the agency told him “it was up to the CEO of Legal Aid in terms of the broader tactics of the case and he was going to say that she’s not a liar but was mistaken about aspects of the version of events”.
Mr Lehrmann said the agency also rejected Mr Whybrow as “too aggressive” to take on the case.
The solicitor told him the agency would not fund Mr Whybrow as his counsel in the trial because “Legal Aid didn’t like the way Mr Whybrow practices or the way he operates”.
Mr Whybrow ultimately took on the case pro bono after Mr Lehrmann refused to accept the Legal Aid conditions.
A spokesperson for Legal Aid ACT declined to comment.
“Bruce was just horrified that they’re not even going to run his defence, which was: she’s lying, she made it up, this did not happen – and to just say, ‘oh no, you misunderstood, you were mistaken’,” Mr Whybrow said. “So he became very distressed.”
The former Crown prosecutor pursued a forceful approach at the trial, describing Ms Higgins as “unreliable” and someone “who says things to suit her”.
Mr Whybrow told jurors she had lied about seeing a doctor to “make it more believable” she had allegedly been sexually assaulted.
He outlined a number of instances when Ms Higgins was forced to concede she had given wrong evidence, including the length of time a white dress was kept in a plastic bag under her bed and a three-hour panic attack on a day she later conceded she had been having a valedictory lunch for former politician Steven Ciobo.
“The person bringing the allegation is prepared to just say anything,” Mr Whybrow told jurors.
The jury had been deliberating for five days, unable to agree on a verdict, when the trial was abruptly aborted after one of the jurors brought research material into the room.
Mr Whybrow told The Weekend Australian he had been concerned that, because of the pre-trial publicity, the defence would struggle to get 12 unbiased, unaffected jurors.
“In some respects, that was borne out by the number of people in the jury pool who quite properly, when the chief justice asked that anyone who thought they might have some pre-existing bias, either for or against the complainant or the accused, or had attended the March4Justice, or subscribed to particular views about sexual assault, or even had had own experiences, that meant that they could not bring a fair mind to the role of a juror to come forward.
“And a lot of people did, but we were never able to be sure that some of the people who didn’t come forward may have had strongly held views and were going to not come forward because they wanted to ensure justice – as they perceived it – would be done.”
Mr Whybrow expressed strong concerns over the role of ACT Victims of Crime Commissioner Heidi Yates, who often accompanied Ms Higgins to court.
“The problem in this case – and it’s not just my perception, it’s one that I know a lot of people have shared – is that by walking next to Ms Higgins into court every day as the statutory office holder of the position of the Victims of Crime Commissioner – and that would be videoed every morning, it would be in the papers and the news that night – it carried with it a less-than-subtle and a less-than-subconscious inference that Ms Higgins was in fact a victim.
“It was about as subtle as if Ms Yates had walked in wearing a T-shirt, saying ‘Bruce is guilty’, Mr Whybrow said.
“This case has demonstrated, in my view, an insidious and underappreciated issue, which is this conflict and this tension and this slow bracket creep between the presumption of innocence on the one hand, and ‘believe all women’ – or in a sexual assault case, ‘people don’t make anything up’ – that is undermining a presumption of innocence.”
Ms Yates declined to comment on Friday, and a spokeswoman for the ACT Human Rights Commission pointed to a previous statement in which it welcomed the set-up of the Sofronoff inquiry.
Mr Whybrow said he took on the case pro bono after Legal Aid ACT refused to hire him because “I wanted to be part of an attempt to at least give this man a fair trial in the face of what I and many other people had considered was such adverse publicity that he could never actually get a fair trial”.
Mr Lehrmann originally approached Legal Aid for help after his first lawyer, John Korn, was forced to withdraw for medical reasons.
Legal Aid also refused to fund the solicitor Mr Korn had recommended, Kamy Saeedi, saying it would assign an in-house lawyer.
Mr Lehrmann said he was stunned that the agency was demanding he accept a defence strategy that contradicted his account of what occurred in Parliament House after a night out drinking with colleagues in Canberra. Mr Lehrmann has consistently maintained, including in his statement to police, that there was no sexual contact of any kind with Ms Higgins and that after they got to Senator Reynolds’ suite, he went left and Ms Higgins turned right, and he didn’t see her again.
“It was basically Kamy who said to me, right, just fire them – he helped me write a letter firing them,” Mr Lehrmann told The Weekend Australian.
Mr Saeedi agreed to take on the case pro bono.
“This is a winnable case if we just do it how we need to, not how the Legal Aid wants to do it,” Mr Lehrmann recalls his new lawyer saying. “He was concerned that I’m being led up the garden path and that they’ve got no idea, because they’re all so woke in Canberra,” Mr Lehrmann said.
“So he just said, I’m just going to do it pro bono now, let’s not worry about the money.”
Mr Whybrow also then agreed to act for Mr Lehrmann pro bono.
“It was, you know, we’ll keep an account going and you will likely never pay. We know that if you’re in jail we’re never going to get paid,” Mr Whybrow said. “And even if you’re acquitted, unless you win Lotto, we’re never going to get paid. But we will act for you.”
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Carbon capture and storage works, but its high cost has slowed its uptake
Carbon capture and storage is “complicated and costly’’ to do on a large scale, and its lack of affordability in part explains why the mature technology is not widely used, the Australian Petroleum Production and Exploration Association conference has heard.
The key role CCS will play in reaching net-zero carbon goals has been a key theme of the conference, being held in Adelaide this week, along with calls for more government support for the technology which aims to permanently store carbon emissions underground in depleted oil and gas reservoirs.
And while Resources Minister Madeleine King told the conference this week that CCS was “perhaps the single biggest opportunity for emissions reduction in the energy resources sector’’, her colleague, Industry and Science Minister Ed Husic yesterday said he wasn’t yet convinced.
“If the technology stacks up, great,’’ Mr Husic said in a radio interview. “I haven’t taken the view that it’s all bad and I haven’t taken the view that it’s all great. I haven’t seen it yet to be honest … it really hasn’t shown that it’s able to work at scale.’’
Mr Husic said “it would be great if we can do it’’, but that remained to be shown.
While Ms King’s comments to the conference were strongly supportive of the role CCS could play in reaching net zero, there were no commitments made in terms of supporting the technology through incentives or subsidies.
Her comments follow the government stripping $250m in previously committed funding from CCS projects in last October’s federal budget.
APPEA says a carbon capture and storage strategy is essential at a national level and is pushing for the creation of “net zero industrial zones” where heavy carbon-emitting industries can be co-located, and their emissions captured and stored.
The conference also heard from many speakers that Australia risks falling behind the US and Europe, which are pouring billions into net zero programs including support for CCS projects, with the US allowing them to use a key tax credit.
To date there is only one commercially-operated CCS project active in Australia, at Chevron’s Gorgon project offshore Western Australia, while Santos’s Moomba CCS project is 60 per cent complete, with first injection expected next year.
The Chevron project is underperforming, with Chevron Australia general manager energy transition David Fallon telling the conference on Wednesday that pressure management issues were still hindering the $2.5bn project.
Mr Fallon said the $2.5bn Gorgon CCS project was working and was “the world’s largest stand-alone storage facility’’, but admitted it was only operating at about one third capacity.
It had to date stored about eight million tonnes of CO2, Mr Fallon said.
The Gorgon CCS operation is designed to store CO2 stripped from the natural gas stream in depleted in reservoirs more than 2km beneath Barrow Island, offshore Western Australia.
The company aims to inject about 100m tonnes of CO2 back underground over the life of the LNG project with the system to eventually capture four million tonnes of greenhouse gases annually.
Mr Fallon said there had been some “misleading reporting’’ saying the project did not work, but the high level message was that “the CO2 storage, it is working’’.
“It’s safely storing CO2. Even with the challenges we’ve had it remains, as I understand it, the world’s largest stand-alone CO2 storage facility solely focused on storage, so we’re working through the challenges and we’ve got lots of engineers and plans to remediate the system,’’ he said.
“There’s often some misleading reporting saying ‘it’s a failure, it doesn’t work. I can say it does work.’’
When challenged on why the technology, which has been in use at a modest scale for decades overseas, has not been more widely adopted, Mr Fallon said “it’s not cheap”, while reiterating that it needed to be part of the net zero toolkit.
“The times are changing, it’s not cheap, but as the world’s evolved and lower carbon is a higher priority there’s certainly more interest in CCS and it becomes a more attractive investment from a cost point of view.
Ms Gao said there were several hurdles the industry had to surmount to make it more viable, which differed by jurisdiction. In the US for example, the permitting time frame for a CCS project currently sat at about six years, while countries such as South Korea and Japan lacked the geological structures to store CO2 underground.
Ms Gao said the growing focus on building CCS hubs provided some “promising hope’’ for the technology.
She said while the cost of capturing CO2 was “actually quit high”, carbon prices were also high and would make projects viable.
“I think the bigger problem with CCS is … the scale and the scale comes more around … the transportation and storage side of it,’’ she said.
Ms Gao said transporting CO2 for storage could double the cost of the endeavour, meaning hubs were a better option.
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Grand buildings are no substitute for genuine scholarship at our universities
A symbol of what is wrong with today’s universities is the new building at the Australian Catholic University in Melbourne, opened last week.
Costing $250m, and taking five years to construct, this gleaming white 12-storey edifice towers over its neighbouring Victorian-era suburb of Fitzroy like a graceless box-shaped Taj Mahal, but in this case named after St Theresa of Kolkata.
The student facilities inside are of plush five-star quality, with generous workspaces and airy lounges set among internal gardens and external terraces, offering spectacular views over the city. So, what is the problem?
The top priority of a university, as a teaching and research institution, should be the quality of its academic staff. Where excellence is valued and privileged over everything else, morale is likely to be high, books and articles influential, teaching inspiring, and departments and faculties can be pretty much left to look after themselves.
Yet it is hard to discern any serious concern with excellence from vice-chancellors, their deputies and deans, over the past 25 years, especially in arts and humanities faculties – apart, that is, from mantras vented in rhetorical mission statements.
This has been the era of the hollowing out of departments, in wave after wave of retrenchment. Tenured lecturers and professors have been replaced by low-paid casual staff, usually part-time lecturers and tutors.
Concurrently, the traditional lecture has been abandoned, with students shifting to online learning, partly by choice but also with encouragement.
Less and less actual attendance at the campus has meant that real tutorials and seminars, in which actual teachers conduct discussions, are starting to look like anachronisms from a long-distant past. In a virtual university, fewer staff are needed.
The waves of retrenchment have been conducted with one aim in view – cost efficiency. The once-upon-a-time collegiate, imbued with a centuries-old humanist ethos, has morphed into an industry like any other, obeying a value-free logic, as if to vindicate the Marxist caricatures of capitalism that humanities disciplines have increasingly purveyed to students over the past 40 years.
I haven’t seen one instance of discrimination along the lines that there are some staff we can’t afford to let go, on the grounds of their research and teaching excellence. To give one example with which I’m familiar, of a smallish Humanities department that had one senior staff member with a well-justified, high international reputation – and who was the intellectual soul of the department, and a gifted teacher. He was encouraged to retire early as if he were no different from some lazy hack, of no greater benefit to the university than a first-year tutor on half his salary.
Administrators seemed to have no conception of mediocrity, including the depressing effect of uninspired and uninterested lecturers on students. I hope I’m wrong here, and there have been odd exceptions to this rankly unprofessional behaviour from top university management.
As a somewhat absurd comparison, I remember being told decades ago when I was a postgraduate student at Cambridge University that if you wanted to find the Nobel prize winners then look in tin shacks along the river, as you wouldn’t meet them dining leisurely at college high tables. Admittedly, the nature of scientific research has changed since those days, but the lesson remains. In any creative area, the rigours of producing the best work are formidable and unrelenting.
The ACU has announced, coinciding with the opening of its Melbourne Taj Mahal, that it needs to cut at least 110 full-time jobs. It is facing a reported $30m deficit.
The deficit is not just due to building largesse. The ACU is also faced with plunging enrolments – 30 per cent in humanities’ students at the Melbourne campus – making one speculate about white elephants. Indeed, humanities enrolments are in decline around the Western world, partly due to the pall of boredom spread by over-politicised curriculums – who wants to hear about Jane Austen’s passing, obscure concern about slavery at the expense of her magisterial displaying of characters suffering the vicissitudes of life!
Sociologists call it conspicuous consumption. The executive invests its hopes and its pride in opulent campus palaces, with office suites at the top, reminiscent of Nero playing the fiddle while Rome burnt beneath him.
It is allied to the fact that in recent decades, university administrations have relentlessly expanded their tiers of management. The manager has replaced the professor as the key figure in the institution. Lip-service these days, at best, is paid to professorial boards, which once were influential.
Over the past century, university employment has swung from a ratio of 20 per cent administrative and 80 per cent academic, to about 55 per cent non-academic today. The real work of the university – teaching and research – is now being carried out by a diminishing, largely underpaid minority, overseen by a large bureaucracy.
To be fair to the ACU, its current projected staff cuts are non-academic. I have some sympathy for any vice-chancellor today who wants to improve the quality of his or her academic staff. This is difficult to achieve.
It would take Jeff Kennett’s determination, via the appointment of ruthless deans with the will to clear out dead wood and make new appointments according to international merit, overriding the political and disciplinary biases of those many existing staff who traditionally control appointments committees.
It would also mean culling the expansive ranks of deputy and pro-vice chancellors, and those under them, cutting back building budgets and creating new first-rank research and teaching centres.
The online university is cruel to students. It destroys student life. A physical campus, with teaching buildings intermixed with cafes, squares, shops, and libraries, provides places for students to gather together with their fellows, catch up, and discuss classes.
The ACU perhaps had this in mind, in providing a luxurious, very comfortable building to attract students into the campus. But the thinking is consumerist, as in drawing people to a picturesque shopping centre.
In universities that are functioning rightly, students are drawn to classes where there is some charisma, where the intellectual content is engaging; attracted by lectures where there is the seriousness that what they are studying really matters, seminars in which there is heated discussion of ideas.
In these universities, the teachers, and at all levels, reign supreme, even when their classes are held in tin shacks up the River Cam.
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The Victorian Liberals have lost their way
The expulsion of Moira Deeming from the Victorian Liberal party requires one simple question to be answered: what is the guiding principle at work? Why was Ms Deeming dumped?
The Liberal party is supposed to operate to a higher, more principled standard than the Labor party. We all know that, in the famous formulation of Graham Richardson, when it comes to Labor party internal politics you do ‘whatever it takes’ to gain or retain power. Thus, when it comes, for instance, to disagreeing with your colleagues, that’s a no-no in the Labor party. The party line is everything.
But the Liberal party was supposed to be different. Disagreement within certain frameworks is tolerated and the principle of free speech supposedly supported.
Following her attendance at a ‘Let Women Speak’ rally, alongside firebrand women’s rights activist Posie Parker and another much-maligned female Liberal candidate from the last federal election, Speccie columnist Katherine Deves, a motion was moved to expel Ms Deeming from the Victorian Liberal party.
This was driven by the arrival of some twenty-odd supposed ‘Nazis’ at that same rally. The fact that these clowns (faces covered, performing idiotic Nazi salutes) appeared out of nowhere at a women’s rights rally should have given pause for thought to wiser heads, but such is the pernicious power of cancel culture and fear of the militant transgender lobby group that the mere sniff of any kind of proximity to or association between ‘Nazis’ and a Liberal party MP was enough to have the bedwetting Victorian Liberals rushing for the smelling salts and an expulsion notice.
The principle at stake with the first expulsion motion? There wasn’t one. Certainly not an identifiable or genuine one. This was simply a classic case of lily-livered Liberals panicking and playing straight into the hands of the authoritarian cancel culture mob. And of John Pesutto being played by Dan Andrews like a cheap fiddle.
At best there was a vague argument that a new, wet-behind-the-ears new MP should have known better than to allow herself to be photographed at a rally where a bunch of clownish ‘Nazis’ turned up, but that is pretty thin gruel. What experienced politician hasn’t got a couple of photos in the closet of themselves standing alongside some dubious character or other?
The result of that first motion – Ms Deeming being suspended for nine months but not expelled – was pathetic, a band-aid political solution dreamed up by spineless politicians unsure of their own principles but terrified of opposing the leader.
Then came the threats of defamation proceedings by Ms Deeming against Mr Pesutto. This matter should have been left entirely in the hands of lawyers. Either Mr Pesutto did defame Ms Deeming or he did not. That’s a legal question, not a political one. In terms of principles it is no different to, for instance, a sexual harassment complaint or a bullying complaint. But the bottom line is clear: Mr Pesutto appeared, if media reports are correct, to be inferring that Ms Deeming, whose uncle survived the Holocaust, was somehow sympathetic to Nazism. Maybe he was saying that, maybe he wasn’t, but the place to determine that is solely in the law courts, not the party room. A settlement of that dispute would either be handled out of court or would involve a substantial awarding of costs to the losing party. These are not matters for work colleagues to get involved in – in any shape or form.
This is where the biggest mistakes were then made. By putting forward a fresh motion to expel Ms Deeming for ‘bringing the party into disrepute’ by threatening legal action against the party boss, party members were in essence being told to place the party boss above the law, or indeed, that due legal process should be denied Ms Deeming because of the power structure within the party. This is abhorrent and should have been rejected out of hand. For those Liberal party MPs who voted to expel Ms Deeming on these grounds not to understand the implications of their actions is worrying to say the least. The gloating response by one MP that ‘you can’t threaten to sue your boss’ was embarrassing in the extreme. Why can’t you? What, for example, would happen if a young, female MP were sexually harassed by a male MP within the upper echelons of the party and threatened legal action? Would the same rule apply? Would she be expelled for ‘bringing the party into disrepute’ and for ‘threatening to sue her boss’? And if not, why not? Why the double standard?
Ms Deeming may be young and naive and not have handled matters as well as she could have. Perhaps. But the only failure here is the failure of leadership at every stage and the failure for wiser heads to understand the fundamental principles at stake. No wonder Dan Andrews is running rings around this circus.
The only people who have brought the Victorian Liberal party into disrepute are those who put politics in front of principle. Maybe they should move a motion to expel themselves.
https://www.spectator.com.au/2023/05/expelling-moira/ ?
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Also see my other blogs. Main ones below:
http://dissectleft.blogspot.com (DISSECTING LEFTISM -- daily)
http://antigreen.blogspot.com (GREENIE WATCH)
http://pcwatch.blogspot.com (POLITICAL CORRECTNESS WATCH)
http://edwatch.blogspot.com (EDUCATION WATCH)
http://snorphty.blogspot.com/ (TONGUE-TIED)
http://jonjayray.com/blogall.html More blogs
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Evelyn Rae, a 
Sahara Ray is undoubtedly a good-looking woman. Since she is Australian-born there is even a possibility that we may be distantly related
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