Law Opinion

Broken justice system leaves victims neglected

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Claire Nowland (left) and Brittany Higgins were both victims of injustice within our legal system (Screenshots via YouTube)

From tasering the elderly to gross misconduct in a major sexual assault trial, this week has revealed massive flaws within our justice system, writes Dr Jennifer Wilson.

*Also listen to the audio version of this article on Spotify HERE.

EVERY NOW AND THEN, we catch a glimpse of the fragility of the brittle veneer of civilisation that keeps society more or less functioning, when it is unwittingly cracked by authorities charged with its maintenance.  

In the last few days, the police and the justice system have been responsible for another disruption of the illusion of safety that is the veneer’s primary purpose. First, they tasered Mrs Claire Nowland, aged 95, in her nursing home in Cooma, NSW. Police were called by staff when Mrs Nowland, using her walking frame, appeared bearing a kitchen knife. Mrs Nowland received a fractured skull in the encounter and is now fighting for her life with her family by her side.

Vision of the incident is described by police as “confronting”. NSW Police Commissioner Karen Webb, in what is perhaps one of the most tone-deaf and offensive statements on the matter so far, says it isn't necessary for her to view it. 

It isn’t a necessity either that Mrs Nowland is fighting for her life as a result of police brutality. The very least the NSW Police Commissioner could do, one might argue, is have the bottle to look at what her officers have done and the ghastly consequences of their inappropriate actions. 

We expect loved ones suffering from dementia will be properly cared for and that authorities involved in that care won’t put them at risk. Yet here we are. The covenant has been broken, the ugliness beneath the veneer revealed. It doesn’t take much — a fragile elderly woman and authorities that appear to be out of control. How many times have we seen a similar tragedy play out when police are involved?

Next, we heard the latest evidence in the Inquiry into the aborted trial of alleged rapist Bruce Lehrmann. The Inquiry, led by Mr Walter Sofronoff KC, is examining the actions of A.C.T. Police, prosecutors and a victim support service during the investigation and trial.

There has been no shortage of WTAF moments for those watching the proceedings or following the days’ synopses, as a story of what might well prove to be staggering human failure and/or malevolence slowly emerges. It is worth following for Mr Sofronoff alone, whose demeanour is engagingly open and frequently mirrors the utter bafflement of those of us watching at home.

Monday’s interrogation of AFP Detective Superintendent Scott Moller revealed that having obtained the sensitive counselling notes of alleged victim Ms Brittany Higgins, he decided in the interests of “transparency” to forward those notes to both the prosecution and the defence.

This is a move that is difficult for the layperson to make sense of. Defence barrister Stephen Whybrow refused to read the notes and described Moller’s decision to send them as “an egregious error”. Mr Whybrow also says he was “flabbergasted” to learn that A.C.T. Director of Public Prosecutions Shane Drumgold did not make the same choice. Mr Drumgold admits to reading them while acknowledging that he potentially broke the law in so doing.

Mr Drumgold also admits to being “shocked” that police had served a brief of unredacted evidence, noting that he had never seen this before. That the matter was a sexual assault brief caused him further concern.

How, we may ask, is it “legal” for police to send such notes if the DPP admits it might be illegal for him to read them? Had Mr Whybrow also decided to read the notes, would the information they contained be passed on to the alleged perpetrator, Bruce Lehrmann?

How is it fair that the prosecution read the notes but the defence didn’t?

Why are the counselling notes of an alleged rape victim available to anybody other than the counsellor in the first place? It’s difficult to imagine counselling being fully useful under circumstances where the victim is aware that anything she says might be used against her.

Quite what the point is of sending the notes to either of them is obscure, but it could hardly have been in the interests of transparency, as Moller claims.

The Sofronoff Inquiry is uncovering the myriad ways in which police and the justice system fail both victims and perpetrators in the matter of alleged sexual assault. Neither party has been well-served. It’s a tragedy all around, but what is alarming is the chilling effect this debacle will have on those who wish to pursue justice after being sexually assaulted.

Ms Higgins’ matter is necessarily high profile, given the circumstances and the public figures, including politicians, involved. However, it’s alarming to consider the chilling effect this investigation, trial and inquiry will have on other sexual assault victims, as it reveals the obstacles, prejudices and incompetence any alleged victim might encounter in her effort to find justice.

Civil society depends on the integrity of its institutions and authorities and the decency and goodwill of its citizens. The tenuous nature of these supports is increasingly apparent, though to those who are vulnerable, the cracks in the veneer have always been wide enough to glimpse the chaos beneath.

*This article is also available on audio here:

Dr Jennifer Wilson is an IA columnist, a psychotherapist and an academic. You can follow Jennifer on Twitter @NoPlaceForSheep.

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