Political Prosecutions: Abusing the Justice Process for Political Advantage

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Fallen scales of justice

The former first minister of Scotland’s devolved parliament was served papers which read, ‘Her Majesty’s advocate v Alexander Elliot Salmond’.

It was a prosecution on 14  sexual offences  alleged to have occurred whilst Mr Salmond, the former leader of the Scottish national party, was the first minister of Scotland.

The former first minister was arrested in 2019 and charged with two counts of attempted rape, nine counts of sexual assault, two of indecent assault and one of breaching the peace.

The prosecution was baseless, a farce – an abuse of the justice process, and the Scottish government ultimately conceded as much and paid Mr Salmond’s legal fees, amounting to more than 600,000 pounds.

A judicial review found that the complaints process was procedurally unfair, a political prosecution intended to bring Mr Salmond.

Here in Australia

Australian politics recently had a similar type of trial, but of a young political staffer, Bruce Lehrmann, who was accused of sexually assaulting Brittany Higgins inside Parliament House in Canberra. 

The defendant pleaded not guilty, the jury was discharged due to impropriety on their part, and the prosecution was later withdrawn.

However, some are of the view the prosecution of Mr Lehrmann was as much to do with politics than anything else.

As Chief Justice, her Honour, Lucy McCallum remarked, it had become a matter with a momentum of its own, which indeed it had, involving power in politics and the culture within federal parliament. 

The two coalition staff members, attached to the office of the defence industries minister, Linda Reynolds, had gone with others for a drink to a pub.

Afterwards, they went with two liberal staff members to another bar and then on leaving to go home called into parliament house so that Mr Lehrmann could collect some papers.

Ms Higgins’ cross-examination on the witness stand severely undermined the credibility of her version of the events. Indeed, the stark inconsistencies and improbabilities led many to believe she was lying about being sexually assaulted. Despite the enormous amount of favourable reporting towards the outspoken complainant in the months leading up to the trial, the jury could still not reach a unanimous verdict after days of deliberations.

Jury misconduct ultimately resulted in the trial being aborted. The misconduct involved one of the jury members bringing academic research papers regarding sexual assault into the jury room, in contravention of the judge’s repeated express directions not to consider information other than the evidence adduced at trial. The juror’s misconduct could not have been more brazen or egregious.

The ACT Director of Public Prosecutions later decided there would be no retrial as it was not in the public interest. His stated reason was to protect the complainant, but many believe it was due to the decimation of Ms Higgins’ credibility on the witness stand.

Mr Lehrmann’s career and reputation had long been destroyed by the time of the DPP’s decision – largely due to media reporting which urged the public to believe Ms Higgins, as well as a result of influential people such as our then Prime Minister Scott Morrison apologising in parliament for what Ms Higgins was supposedly subjected to in parliament house.

Some of the media reporting amounted to contempt of court in so far as it was directly against the judge’s directions and affected the integrity of the upcoming trial to such an extent the proceedings had to be vacated and relisted. No one was ever charged with contempt of court.

The treatment of Mr Lehrmann by the media and, indeed, by politicians is despite the fact our nation is meant to have a presumption of innocence – the presumption that a person is innocent until and unless he or she is proven to be guilty in a court or tribunal of law.

Under this doctrine, Mr Lehrmann is an innocent man.

Complainant makes a motza

Meanwhile, news media recently reported that the Albanese government has paid $3,000,000 to Brittany Higgins in a confidential settlement, after a single mediation session.

This is despite Mr Albanese long campaigning against secret payments, in any context.

If such a payment has, in fact, been made, a question to be asked is why such a large amount of hard-earned tax dollars was given despite the allegations never having been proven, and in the context of the complainant’s – to put it mildly – tenuous evidence on the witness stand.

To put it in context, no jurisdiction in Australia has a compensation scheme for those who are wrongly convicted, imprisoned and later exonerated. Rather, and unlike many jurisdictions in the United States, those proven by DNA or other evidence to be innocent need to commence civil proceedings, and payouts for such horrendous miscarriages of justice, as well as for atrocious, life-altering acts of police brutality, have historically fallen far short of the sum reportedly paid to Ms Higgins.

The complainant is also reported to have been paid for various media interviews, whilst becoming the ‘poster woman’ for the #Metoo movement in Australia.

Attorney-general of Australia faces sexual assault claim

Historical sexual assault allegations were published by the ABC in 2021 which led to revelations that a case had been opened by New South Wales police in 2020 after an allegation that a woman had been raped as a 16-year-old in 1988 in Sydney.

The alleged rapist was said to have been Australia’s attorney-general, Christian Porter, himself a young man at the time.

The alleged victim was shortly to advise NSW police she no longer wished to proceed with her allegation and within a relatively short time later committed suicide.

Labor leader also accused of sexual assault

A woman by the name of Kathy Sherriff accused Bill Shorten of sexually assaulting he at a Labor youth camp in 1986, when she was 16 years of age and Mr Shorten was 19.

 The Victorian police investigated the matter, finding Mr Shorten had no case to answer.

None of the alleged perpetrators were prosecuted, but it is clear that they were adversely affected, some seeking psychological medical care.

Similarly, the alleged victims also found themselves adversely affected, one having committed suicide, another hospitalised with apparent psychological issues and one seemingly seeking help to proceed in an effort to be heard.


Back to the solicitor who became a Scottish legend

Freedom was the war cry of the Scottish knight, Sir William Wallace, who in the 13th century led Scotland in the first Scottish war of independence against England and king Edward 1 who had invaded Scotland in 1280. Sir William was not a king in name but was the guardian of the kingdom of Scotland.

The solicitor, Nicola Ferguson Sturgeon, first minister of Scotland is another Scottish warrior who cried freedom for her country. The first minister was not the prime minister by name, but  certainly another guardian of Scotland.

Many SCL articles explain that there are 3 British legal jurisdictions today, one being England and Wales, one Scotland and the other, Northern Ireland. Well, so it was at the battle of Falkirk in 1298. English and Welsh soldiers fighting side by side during the invasion of Scotland.

Similar to being outnumbered by the English army at the battle of Stirling bridge in 1297, with Sir William routing the English army, this first minister of Scotland shows no fear of being vastly outnumbered by her English counterparts.

In 1332 Edward Baillol, soon to be made king of Scots, despite being Scottish himself, caused the second Scottish war of independence, by invading Scotland again, fighting alongside English and Welsh soldiers.

The parallel here is that the first minister’s first Scottish war of independence which ended in Scotland’s defeat in 2014, in relation to a referendum asking the question, should Scotland be an independent country, will not see a second war led by her into battle.

44.95% voted yes, with 55.05 voting no.

The first minister won’t get a chance for that second Scottish war of independence, as she has decided to abdicate.

The Scottish National Party leader abdicates as first minister

The second Scottish war of independence, called indyref2, was due to commence at the 2024 general election as a second de facto referendum for Scottish independence which was due to become official party policy, as a result of a Supreme court ruling that Holyrood (meaning Scottish parliament) was not permitted to hold a second referendum, unless approved by Westminster (meaning UK parliament)

Holyrood is an area in the capital city of Scotland, Edinburgh, which is the home of the Scottish parliament and the palace of Holyroodhouse is the official residence of King Charles 1, king of Britain, when staying in Scotland.

The Palace of Hollyroodhouse