News & Current Affairs

By Peter Woodhouse

17.02.21

Parliamentary rape allegation – any hope of a fair trial?

Speaking up for the interests of a person accused of sexual assault isn’t trendy in the current climate, but the fact remains that this man is entitled to the presumption of innocence and has a right to a fair trial.

The allegations have got a lot of airtime since they were first made public, on television, on Sunday night.  There have been several follow-up interviews from the complainant and a lot of public comment from other people who are likely to be witnesses in any trial, should the complainant decide to pursue her complaint to police and charges be subsequently proffered.  There has also been extensive public comment from other high-profile Australians, including the Prime Minister, who must have an impact on the public’s perception of such matters.

Should charges be proffered over these allegations it appears, from the few details we know, that this will be a complex matter, at least from a legal point of view.  Issues of consent in sexual assault allegations are often complicated.  The waters are often made murkier when drunkenness and the ability for a person to consent to sexual activity when in drink comes into consideration.  Those complicated matters have not been assisted by the high level of media attention and public comment the matter has attracted.

It is not for me to question the motives of the complainant, but the way various complaints have been made – initially to police and then internally, followed by several media interviews and a further apparent intention to resurrect the complaint to police – will be fodder for any good defence lawyer.  But that history casts a shadow of doubt over whether there is any hope of this man ever receiving a fair trial.

Should the accused man end up being charged, charges will be proffered in the ACT.  In Canberra, the law requires sexual assault trials to be a trial by jury.  What are the odds that a fair and impartial jury of 12, who have not been influenced by the extensive media coverage, could be found in Canberra’s well-educated and informed population?

The right to a fair trial has been a beacon of our criminal justice system for hundreds of years.  More recently, it has been protected in the ACT Human Rights Act.  The solution, when there is no hope of a fair trial, is for the Courts to order a permanent stay of the proceedings.

As important, is the presumption of innocence.  What the House of Lords described as the ‘golden thread’ that webs its way through our legal system. This man, like anyone else accused of a criminal offence, is presumed to be innocent, unless and until any charges are proved against him beyond reasonable doubt.  I may just be a stale pale male, but that has not happened and trial by media or by public opinion is no substitute.

The media, political commentators and the politicians themselves have a responsibility not to interfere with the administration of justice.  Unfortunately, in this matter, there is a good chance that horse has already bolted.