How can men prove their innocence ?

Andrew L. Urban.

Sexual assault, what people think of as rape and sexual intercourse without consent are not really the same thing, yet they are stapled together in the eyes of the law. The entire subject is one of the hottest issues in the public square.# The Law Reform Commission is even looking at how convictions can be increased by lowering the bar for prosecution. Is that wise? Is that consistent with the presumption of innocence, the onus of proof on the Crown – and with justice? 

Not all rapes are equal. On a rising scale of five, say, where would we place sexual intercourse without a condom if it is the third or fourth otherwise consensual intercourse? Maybe 0? What about an unwanted and forced sexual intercourse with a stranger on a dark night in a park? Maybe 5 (whether a park or not)? Do these two examples deserve equal punishment at law? Equal public disgust and social condemnation? Are sexual crimes crimen exceptum, where the established rules of justice need not be applied?

Next question: if a woman’s sworn but unconfirmed testimony in court is lawfully accepted as THE evidence against the accused, have we not removed the presumption of innocence and reversed the onus of proof? For example, take the case of Noel Greenaway, accused of several historical sexual assaults of then teenage girls at the Parramatta Training School for Girls (an institution for delinquents) decades earlier. The women made accusations: ‘they said’…

In his summing up to the jury, trial judge The Hon. Richard Weinstein SC, explained: “The evidence comprises the answers that witnesses gave to questions asked of them.  That is important to remember because sometimes a question is suggested to a witness, a proposition is put.  If the witness does not adopt the suggestion or agree with the proposition, then there is no evidence of that fact. So the evidence then is the answers that the witness gives in the course of their evidence and the exhibits* that you will have with you in the jury room.  On that material, and on that material alone, you arrive at your verdicts.”

*The exhibits consist of certificates, documents, reports, photos; there is no further evidence contained in the 75 trial exhibits.

Greenaway’s defence presented the evidence of witnesses that challenged the claims of the accusers. The jury ignored it (thanks perhaps to the judge’s summing up). This scenario is repeated in other cases, some recorded in this blog, such as ‘Paul’, A man, without a single other legal blemish, convicted of historical sexual abuse of a young teen in his family, 22 years before, believes he could prove his innocence if – IF – the NSW Attorney General advised the Governor to act on his detailed petition and referred his case for a judicial review. But the A-G won’t.

So how can men prove their innocence?

That question is posed while the prosecutorial system is itself waging war against men.

The day before one rape trial began in March 2024, the complainant’s deception came to light: she had rehearsed a script for a phone call to manipulate the accused into making admissions to a rape that didn’t happen. Calls for a special commission to review decisions by prosecutors are growing louder, following several other rape allegations are found to be false.

 According to Ellie Dudley’s report in The Australian (9/3/24) the NSW chief prosecutor’s office is “facing a bitter war with sitting judges and its own staff, as it continues to come under pressure for running so-called “meritless” rape cases, and an emergency meeting with dozens of Crown prosecutors was called to discuss the emerging scandal.

These developments underline the urgent question about the presumption of innocence and related onus of proof on the Crown surviving for men accused of sexual crimes.

Take the most recent example of how the system’s slant against men is in reality a slant against the rule of law. Here are some key excerpts from the news report by Mackenzie Scott in The Australian (5/7/24):

The court heard that the complainant, who legally cannot be identified, alleges she met Mr Lehrmann at a nightclub on a night out in Toowoomba in October 2021. He introduced himself as Bryce, and they began discussing their political views. She has consumed alcohol and cocaine.

Around 4am the following morning, the pair went to the home of Mr Lehrmann’s school friend. The two had consensual sex and took cocaine that Mr Lehrmann had found in the woman’s bra before falling asleep.

She alleges the following morning, she woke to Mr Lehrmann having penetrative sex with her without her consent and he was not wearing a condom like they had agreed to the night prior.

In her statement, the woman said she moved her body to remove him and told him to stop, noting she still felt drunk. She alleged he climbed back on top of her to continue having sex, repeating “It’s OK, it’s Ok” and consoling her until he ejaculated inside her vagina.

Mr Hoare brought into question her recollection of the event in light of her alcohol and drug use. A doctor who provided general evidence to the court and did not examine the woman said the combination of the intoxicating factors could lead to fragmented or a loss of memory.

“The evidence is that there is a significant consumption of alcohol, which alone can cause the fragmentation of memory, and that is in combination with cocaine,” Mr Hoare said.

“And, in this case, the defendant had told the complainant that they had had inferentially consensual sex (on) at least four occasions prior to the case (that) was subject to the charge.”

Following the alleged rapes, the woman asked Mr Lehrmann to take her to the chemist to purchase the morning-after pill as she was not on any contraception. Mr Hoare said the fact she ticked a box stating the medication was due to contraception failure and not sexual assault was a “complicating matter”.

“It must be said that the ticking of the boxes is quite distinct to any type of narrative being asked of her or otherwise, and that is said to be a contradiction of the complaint now made,” he said.

Mr Hoare also noted that she did not tell her general practitioner about the alleged assault in four subsequent visits in which they discussed her mental health in relation to a WorkCover claim and personal matter. She had also requested a test for sexually transmitted diseases.

Crown prosecutor Nicole Friedewald argued it is was not uncommon for a sexual assault victim to not immediately tell friends or authorities.

“The fact that she did not disclose anything immediately, whether by ticking a certain box on a contraceptive checklist or by telling friends or acquaintances or general practitioners in the days after the offending, does not mean that it did not happen,” Ms Friedewald said.

“Nor does it mean, in my submission, that she did not hold the subjective belief at that time that she had been sexually assaulted.”

Ms Friedewald said the woman told police in her initial complaint on November 26 that “she had not yet accepted or come to terms with what had happened to her”.

The prosecutor also submitted text messages between the woman and a friend that occurred in the weeks following the assault.

“I just feel so shameful,” the woman wrote.

The friend responded, noting at the end: “You also need to think about whether you ever would want to report this to police. There are options to do that anonymously too, if you are worried”

The complainant then responded, “What do you mean report it?” to which her friend indicated that the woman had been sexually assaulted.

Ms Friedewald said: “The complainant does not at that time question whether that is in fact true.

“There is no dispute by her or confusion about what happened to her. Rather, what she immediately says is, ‘Who is going to believe me?’.”

After hearing from both sides, Magistrate Howden considered the submissions for 10 minutes before making his decision.

“Taking all these factors into account, I form the view that ultimately, the reliability of the complainant’s evidence will be a matter for an arbiter of fact,” Mr Howden said.

“It is in my view, in considering the evidence as a whole, it is sufficient at this stage to reach the conclusion that a reasonable jury, properly instructed, could return a verdict.”

Lehrmann’s legal team was not surprised; no magistrate would fail to commit him to trial given the profile of the case. But just why and how would a jury need to be “properly instructed” to decide the facts and would then “return a verdict” that serves justice?

Because readers will be aware that the circumstantial evidence revealed here establishes reasonable doubt against the allegation. So at the trial (sometime in 2025) it will be up to Lehrmann to prove his innocence.

It’s not just about Lehrmann or Greenaway or any of the others. Reversing the onus of proof takes us back to a time before the rule of law, before the Magna Carta. A time when accusations easily morphed into convictions. A time when innocent women could suffer miserably once denounced as ‘witches’; the exhortation then was “believe all accusers.”

# Restoring the Presumption of Innocence Conference will tackle some of these issues; Saturday, August 31, 2024, 8.30 – 5, Rushcutters Bay, Sydney

DISCLOSURE: Andrew L. Urban will work with Bruce Lehrmann on his book about his experience after being accused of rape by Brittany Higgins.