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Beyond a Reasonable Doubt !

The jury of eight women and four men have retired to consider their verdict in the Lehrmann trial : there had been sixteen jurors empanelled (ten women and six men) who attended throughout the trial just in case any were ‘sin-binned’ or otherwise indisposed and unable to participate – as it turned out none were, so four had to be dropped by drawing lots.

The jurors, individually, have to deduce from the evidence a conclusion based on their own life experience as to whether a sexual assault involving actual penetration occurred and if it did that it was without consent. The law can be quite clinical about what must have occurred and consent cannot be considered as given whilst unconscious, under the influence of drugs or alcohol or whilst asleep.

The jury will have to be unanimous (the judge has already ruled out a majority decision) in their finding and it must be to the standard of ‘beyond a reasonable doubt’. On the balance of probabilities is not good enough, that is a civil standard and this is a criminal trial. Their determination of what occurred in the early hours in a minister’s office in 2019 and the evidence presented has to convince each of them individually that the alleged crime took place.

The judge will not explain what ‘a reasonable doubt’ means or why they must go ‘beyond’ that standard to reach their conclusion Those twelve citizens need to understand individually what is meant, based on their life experience and their comprehension of the English language. Therein lies a fundamental problem as in this multicultural society we don’t require prospective jurors to demonstrate their proficiency with the English language.

The accused, of course, has remained silent throughout and beyond maintaining that nothing actually happened has relied on the ‘presumption of his innocence’, the right that extends to us all if accused of a crime. His defence counsel and the judge reminded the jury he was within his rights to stay silent, and that they should draw no inferences from the fact that he chose not to give evidence in the trial.

It is for those making the accusations and bringing the charges to provide evidence and prove every element of the alleged crime, to a standard that is ‘beyond a reasonable doubt’ and, if a doubt reasonably based, exists in the mind of any one of them, then the accused must be acquitted : that’s how the system works.

This is a file note and not a commentary on this trial or the evidence or the culpability of the accused or the veracity of the complainants evidence, that comes later. At the present time the jury are considering their verdict and we must await that outcome.

 

 

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45 comments

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  1. The AIM Network

    At least you know who’s on trial, Terry.

    Over at News Corp they can’t seem to make up their mind.

  2. Stephengb

    TM
    Good to remind ourselves;
    That we are all innocent untill proven guilty
    That the accuser has to prove their accusation.
    That guilt is beyond doubt.

    Having said that, I am well aware, that in the case of none consual sex, it is extremely difficult to prove unless the evidence is overwealming.

    For those men who take advantage of women, who are clearly not in control of their senses, they makes themselves a rather pathetic figure, let alone a man.

    If a man did what he was accused then I hope he is found gulity, but if there is any reasonable doubt he should be acquitted.

    After all, thought the ages, many men and women have been executed or served terrible retribution for crimes they are subsequently found to be innocent.

  3. Florence nee Fedup

    I don’t think the charge was rape.

  4. Terence Mills

    Florence

    ‘The penetrative sexual offence is described as: ‘rape’ in Victoria, Queensland, South Australia and Tasmania; ‘sexual assault’ in NSW; ‘sexual intercourse without consent’ in the ACT and the Northern Territory; and ‘sexual penetration without consent’ in Western Australia. ‘

    This offence allegedly occurred in the ACT and is being heard in the ACT so it is ‘sexual intercourse without consent’. Only the media have chosen to use the term ‘rape’.

  5. leefe

    There needs to be a reassessment of how potential sexual assault crimes are dealt with; proving a crime “beyond reasonable doubt” is, while not impossible, far harder than with any other offence. The system favours the accused to such a degree that a fair and balanced examination of events is almost unachievable, especially when, as is the case with the majority of sexual offences, the accused is known to the complainant.

    I don’t know how to balance fairness and justice in such cases. Legal systems are blunt and unwieldy tools when we need something with the delicacy and acuity of a tiny sewing needle.

  6. Roswell

    Terry, I think I’ve got this right (but I’m open to debate):

    I don’t want to see Lehrmann convicted of rape. Instead, I want to see justice served. If convicting Lehrmann is as a consequence of that, then I’m more than satisfied.

    But as leefe alluded to and as I’ve seen in my former life, courts can and do get it wrong.

    Personally, I think it’ll be hard to charge Lehrmann. It’s hard to get a criminal conviction at any time, let alone when the jury has to be unanimous and be beyond any reasonable doubt.

    Either outcome will no doubt be appealed.

    We could be here a fair while.

  7. leefe

    Stephengb:

    This may seem like a something of a quibble, but it is an important point: the complainant does not have to prove anything in court. That is up to the prosecution.

  8. Rossleigh

    It’s really quite simple because of the word “reasonable”.

    If my wife comes home unexpectedly and I’m in nothing but my dressing gown and there’s a women in the shower and I explain that we were eating lobster for lunch and the lobster sauce leaked all over our clothes so we took them off and she’s now showering before she goes home and no, there’s no lobster sauce on her clothes because I’ve washed them and put them in the dryer and she’ll put them on as soon as she’s out of the shower, there would have to be some doubt in any reasonable person’s mind.

    Well, yes, I am allergic to shellfish and I am certain to vomit profusely if I eat lobster, so that adds further weight to why I needed to take off my clothes and…

    Ladies and gentlemen of the jury, we need to be clear here. Are you going to convict me on evidence that it is completely circumstantial?

  9. paul walter

    I think Lehrmanns gutter defence will get him off the hook in the tricky sense, but he will wear the approbrium for a long time.

    She had no reason to do him over, and much else has seemed tacky, esp involving those two hideous creatures, Reynolds and Cash. No sign of brown peper bags or cheques, tho..

    The guard discovering Higgins in a distressed condition tore it for me, but after the judge’s comments, made me wonder how high the “smoking gun” requirements are going to be for this. She made a bit of a mistake of the sort we all do at that age and said so herself. so if were so he would need to pay an equal price if only though humiliation,, although I am not saying he looks an arrogant entitled prick deserving of being taken down from his high horse… we all make mistakes, don’t we?

  10. Roswell

    paul, it concerns me that Higgins signed a book deal for over $300,000 before the trial. It’s not a good look, in my humble opinion.

    Or it may be just me. Still, I wish she hadn’t have done it.

  11. paul walter

    Roswell, that seems a fittingly squalid end to a protracted squalid tale.
    Interesting heads-up.
    I suppose if you see a hundred dollar note on the footpath, you wouldnt just leave it there.
    No. I don’t really blame you.
    (sighs).

  12. andy56

    he takes her to parliament, to some office, she is pissed as a fart going in. she is found later , naked. Call me foolish to jump to conclusions, but innocence doesnt pass the pub test. Unless he has some fetish about undressing women. In which case he is still guilty of being an arsehole.

  13. paul walter

    Roswell, What you tell us has me wondering if it was Higgins being cynical or more the agent offering the contract.

    Did the money matter a heap to her or did she just want it in court. Certainly there is a hint of set up, but I still dont quite accept Higgins took it to court mainly for lucre.

    I dont think he will be necessarily found guily, but like Andy, I wonder if what goes round does not come round and he is copping payback. If his concience is clear, he will be ok even if he is found gulity. Perhaps someone will offer him a book or mag contract?.

  14. leefe

    There are far easier ways to make $$$ than testifying in court as the complainant in a sexual assault case. Given everything Higgins has has endured in this matter is it more likeliy that “she’s only doing it for the money” or that an assault actually occured?

    It’s depressing to see the same old tropes being trotted out even now and here. You have to be the perfect victim, have the perfect perpetrator, behave exactly how everyone else dictates, and even then there’s always blame levelled at you …

  15. Canguro

    Truss described as ‘…a planet-sized mass of overconfidence and ambition teetering upon a pinhead of a political brain.’

    Schadenfreude is so sweet, but it should never have come to this. The Tories are a lost cause, and destined for oblivion. Neoliberalism too. If these fools had a shred of decency about them, they would grant the British a general election, immediately. It’s a pity the tampon wannabee doesn’t have the power to order it so.

    Oh dear, indeed!

  16. Arthur Palmer

    The first person to make contact was a uniformed senior female parliament house security guard. No response to a direct enquiry as to her wellbeing other than to roll over naked on the couch. The report of this encounter without the rape allegation certainly should have endangered her job?

  17. leefe

    And now the circus will devolve into a choice between bringing back Boris, or elevating Rishi Sunak – of whom the best that can be said is that he isn’t BoJo or Truss.

    Having gotten rid of the LNP (for now) I feel extra sorry for what the UK is enduring.

  18. Paul Smith

    For some reason – I can’t think what it could be – George Pell comes to mind every time I hear about this case.

  19. JANO .

    The can of worms is truely dribbling out on this perplexed legal dilemma ,and its a cycle seen repeated in many different working enviroments or settings ..But the drinking senario one, like this one , is at the top of the list for alleged rape or consensual sex or some other catergory to fit the said offence that has occurred in an infinity of cases ..

    Alcohol and sex ,drugs and sex .sounds like a familar ring in the tabloids .etc etc ,,.

    .The lines are truely blurred as to who done what , and who to believe , The stuff of Agatha Christi Novels and holly wood drama’s ,so, i wish the JURY all the best in establishing fact from fiction and truth from lies- all in the name of beyond a reasonable doubt – Nice title for a novel
    and, or a song ,(,,And Terence has raised some good points to mull over in his observations angle ,in this article ) .

  20. Roswell

    leefe, I just think the timing was poor.

    Good on her for writing a book. I would have waited.

  21. Terence Mills

    The jury are now into their third day, what does this tell us.

    First, it’s not straight forward, it’s not an open and shut case.

    Second, they must be sifting through the evidence minutely to find the truth as to what happened.

    Next, there could be one or two jurors who are holding out and unlike some jurisdictions they cannot, in the ACT, go for a majority of ten out of twelve ; it has to be unanimous.

    They will work over the weekend and the judge may sequester them so that they can’t go home : that usually focuses the mind of a juror.

    On Monday (or before) we can expect the judge to call on them to see if they are going to be able to reach a unanimous verdict. If not they become a hung jury and the trial comes to a conclusion. It is then for the public prosecutor to decide if they go to a second trial – unlikely I would have thought as the young woman had trouble getting through her cross examination the first time and made herself unavailable for four days in the middle.

  22. LambsFry Simplex.

    For God’s sake, Terry…

    But I thought it would be tough and now tougher without a unanimous verdict.

    Roswell, did they announce/sign for the book before or after the trial was announced?

  23. Roswell

    I believe it was announced during the trial. If it was announced prior to, then I’ll accept that I’m an idiot and it is me who has poor timing.

  24. LambsFry Simplex.

    No, I for one don’t think you are anything close to an idiot, Roswell.

    I think the commercial mperatives are a bad look, even if nothing fishy actually went down, because folk may conjecture that the trial was instigated in order to suit commerical imperatives.

    I still think she is legit, but I dont think they will convict because the thing has involved sham and deceit all the way through and the book deal will not wreck the trial, but leaves, as you said,a person with a queazy sort of feeling.

    Doesn’t it come across as Grisham-ish, Americanised?

    I think they won’t convict and she will still have shamed Lehrman, which may or may not be fair for Lehrman (depending on his conscience and what if anything actually happened.

    “known unknowns
    unknown knowns”

    Including the role of trauma in fronting a court for all protagonists.

  25. leefe

    The timing of the announcement was probably decided by the publishers, to maximise interest from the public, and bugger whatever effect that may have had on the proceedings.

  26. Roswell

    LambsFry and leefe,

    You both add a new level I hadn’t thought to consider, ie, that the publisher could be seeking to maximise profits ahead of anything else. They need to fertilise their investment … watch it grow.

    Hmmm. How did I miss that?!

  27. Terence Mills

    The jury will not be working over the weekend, the judge sent them home.

    Slightly unusual but they were warned not to discuss the case with anybody, to stay away from social media and not to read any newspapers.

    Maybe he wants them to come back on Monday with a clear head.

  28. Terence Mills

    Roswell

    Something else that is yet to be explained.

    The two of them entered the parliamentary precinct at around 1.40 am on the Saturday : he said he needed to pick up his keys and some papers.

    The security guard accompanied them to the ministerial wing and into the offices of minister Linda Reynolds. Normal procedure would be for the security guard to wait for them to get their things and then escort them from the offices and out of the parliament. But this did not happen, the security guard left them to their own devices (i.e. two junior staff who were part pissed on their own in a secure area)

    How can that be ?

  29. Roswell

    Terry, that is indeed unusual.

    I don’t know too much about Parliament House security rules, policies, procedures or protocols, but nonetheless I feel adequately comfortable in suggesting that this was not the way things should be done.

  30. Roswell

    Terry, it’s odd that Minister Reynolds – that I’m aware of – hasn’t raised the issue of security, ie, them being in her office unaccompanied – because I’m assuming that those junior staff would have a security level lower than the minister’s.

    This event could have been a security breach, for which I blame the guard.

    Of course, the above is only speculation.

  31. Terence Mills

    The jury are continuing its deliberations today after being unable to reach a unanimous verdict on Monday.

    On Monday morning, the jury reconvened to tell the ACT Supreme Court that it was yet to reach an agreement beyond a reasonable doubt and asked Chief Justice Lucy McCallum for guidance about how much longer it could deliberate.

    “There’s no rush — no time expectation,” Justice McCallum said.

  32. Michael Taylor

    This could take forever. For some this must be so torturous.

  33. Terence Mills

    Michael

    I would think that the judge won’t let it go on for much longer than this week.

    I have no doubt that there would be some among the jurors who are saying that they just want this whole thing to be over so that they can get back to their normal lives.

    As it seems that the judge in the ACT doesn’t have the option of a majority decisions (ten out of twelve) it may end up as intractable and the trial has to be abandoned.

    Surely, it would not be justice to go to a second trial ?

    In Scottish law there is the alternative for a jury to find the case against a defendant as not proven beyond a reasonable doubt. The legal implications of a not proven verdict are exactly the same as a not guilty verdict – the accused is acquitted and is innocent in the eyes of the law ; not very helpful !

  34. Terence Mills

    Timeline Tuesday 25 October 2022

    This is like Days of our Lives

    Having told the judge that they were unable to reach a verdict, the Judge, directed the jury to go back out and continue their deliberations to see whether they can reach a unanimous agreement.

    About 10 minutes after they were directed to continue their deliberations, the group informed the judge they wished to go home and return tomorrow (Wednesday) morning.

    “Members of the jury, I have been told you would like to go home now and return tomorrow with fresh minds,” Chief Justice McCallum said.

    “I do want to thank you for your continuing hardwork and to remind you, as I have many times, if there is anything I can do to help you or support you…please let me know.”

    She urged the jury members to do whatever they needed to have respite from the “arduous task” facing them, suggesting they “hit the gym” or “walk the dog”.

    The jury will reconvene at 10am on Wednesday.

  35. Socrates.

    I thought the security lapse comments interesting. All could have turned out differently.

  36. Sydney

    “security lapse” or “default protocol for drunken people above a certain clearance”

  37. Socrates.

    Sounds very Aussie; a new “Utopia”, Sydney

  38. Terence Mills

    Timeline Thursday 27 October 2022

    The jury continue their deliberations and continue to be deadlocked.

    Another unusual aspect of this case, highlighted today in the SMH, was the apology offered to HIggins in the parliament on February 8 2022 .

    Morrison apologised to Higgins in the House of Representatives “for the terrible things that took place here” , he said that parliament should have been a place of safety but “turned out to be a nightmare”.

    You have to wonder the extent to which a fair minded juror could be influenced when, prior to the matter going before a court of law, the prime minister apologised to the alleged victim.

    Not easy for the jury.

  39. Michael Taylor

    The jury has been dismissed, as it was found that one of the jurors has been conducting his/her research about the case on “evidence” not introduced in the case. A new trial is set for February 2023.

  40. Socrates.

    So much for budget repair.

    Interesting to know the substance of this “material” and if the judge had erred in not allowing something important to be revealed during the trial. This is really a lawyers junket.

  41. Terence Mills

    A very tricky situation ; a juror doing independent research is frowned on by the Court but it is not unusual in this age of the internet and social media.

    Nonetheless, the judge has abandoned the trial as she probably would have done by tomorrow anyhow as clearly the jury could not reach a unanimous verdict ‘beyond a reasonable doubt’.

    The jury were placed in an unenviable situation over an historic alleged incident (it was said to have occurred on 23 March 2019) but no formal police complaint was made until 24 February 2021 and there was, of course, no forensic evidence by then. Even the dress which she said she had placed in a plastic bag under her bed unwashed for six months turned out to be a red-herring as she was photographed wearing the dress at a function less than two months later (on 15 May 2019).

    Higgins made a prepared statement outside the Court which likely would have infuriated the judge who had specifically called on all parties to avoid encouraging media publicity with a retrial pending – Higgins said that :

    “I was required to tell the truth under oath for over a week in the witness stand; I was cross-examined at length. He [Lehrmann] was afforded the choice of staying silent in court, head down in a notebook, completely detached.

    “He never faced one question in court about his story and the criminal charges. I was required to surrender my telephones, my passwords, messages, photos and my data to him. He was not required to produce his telephone, his passwords, messages, photos or his data.”

    Never a good idea to criticise the court systems and the ‘presumption of innocence’ or the complainants duty to have her lawyers prove every aspect of the charge beyond a reasonable doubt.

    Whilst a new date has been set, it will be up to the DPP to decide if it is in the public interest for there to be a retrial.

  42. leefe

    According to an article in the Grauniad, the research appeared to be into false allegations of rape – prevelance thereof and psychology behind. Now, researching the percentage of proven false allegations is as likely to have been done by a pro-guilty as a pro-acquittal juror, but looking at the psychology involved suggests to me that it was more likely pro-acquittal.

    Either way, it makes a fair resolution of the matter less likely. This trial would already have taken a massive toll on Higgins. Enduring a second would multiply that trauma many times over.

    Terrence: Again, this is a criminal trial. It is not up to the complainant nor her personal legal advisors to prove anything. It is the job of the official prosecutor, who is working for the ODPP.

  43. Socrates.

    Leefe, it said on the teev that both false and true allegations were compared and covered.

    Unless we know who the Academic responsible is for the piece, it is not really plausible to say what the juror may have been pointing to, anyone from a woke to a Hansonist or maybe even someone well trained and objective.. If a study is done in a serious manner, we can say a misguided juror for sure, but not necessarily a poorly intentioned one.

    I truly wondered if someone from the runaway jury would end up doing what they did and scotching the trial. Can you imagine the add to the combined billif they get a retrial running?

  44. Terence Mills

    We now know that a new trial will be convened in February 2023 following the abandonment of this trial due to juror misbehaviour (and the fact that they couldn’t reach a unanimous decision).

    It’s not going to be easy to find a new panel of jurors who have not been swamped with media information and social media bias ; Higgins who should be maintaining a low profile is not helping matters by becoming a favourite of the media including, last week, doing a cameo appearance at Marie Claire’s Women Of The Year Awards in Sydney.

    That’s me, signing off !

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