Brittany Higgins prosecutor bites the dust

Drumgold provides an object lesson in the many and varied ways a prosecutor can fail to carry out that duty. But Sofronoff pays particularly attention to Drumgold's "serious breach of duty" by failing to comply with the "golden rule" of disclosure that sits at the heart of a fair criminal trial.

For Bruce Lehrmann there's a certain irony in knowing that for all Drumgold's unseemly zeal to put him behind bars, it was the prosecutor's bumbling inappropriate behaviour which stopped that happening. Drumgold's failure to prevent Lisa Wilkinson from delivering her Logies speech led to the postponement of the trial which allowed the defence to gain access to vital police information about Higgins' evidence - which probably kept him out of prison.

Sofronoff is convinced that even if that had happened, that would not have been Lehrmann's ultimate fate. He wrote: "Had the defence, by their professionalism and persistence, not obtained [the police documents] despite the improper obstruction they faced, and had the documents come to light after a conviction, in my opinion, the conviction would have been set aside on the ground of a miscarriage of justice."

Maybe, and then again, maybe not. Having learnt from Bruce Lehrmann about the mighty struggle he faced as a broke man trying to find the right lawyers to defend him in the criminal case, it's a glib assumption that, if he had ended up in prison, he would have managed to find a legal team willing to put together such a complex appeal. And every time he goes near a court, it costs significant sums, even with pro bono lawyers.

This is a man embroiled in one of the most sensational rape cases this country has seen, and still none of this is easy. Spare a thought for the ordinary men who end up in prison as a result of the other Drumgolds within our criminal justice system – zealous prosecutors willing to trample over all those legal principles demanding fairness, disclosure of exculpatory evidence, protection of the rights of the accused.

According to The Australian, the Legal Aid NSW Criminal Law Conference this week ran a survey asking the audience, which comprised mostly experienced criminal lawyers and some prosecutors and barristers, how frequently does the prosecution fail to comply with its duty of disclosure in criminal proceedings in NSW?

Of about 300 lawyers there, 93 per cent of participants said the prosecution failed to comply with its disclosure obligations in NSW either routinely or frequently. The Australian article quoted senior legal figures saying prosecutors consistently fail to comply with disclosure rules and other essential requirements for fair trials.

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My files are bulging with such cases but perhaps the most relevant involves Sara Jane Parkinson, who went to prison for malicious false allegations of rape and violence against her former fiancé, Dan Jones. You may have seen the special Sixty Minutes feature celebrating this exceedingly rare event - a woman actually being punished for faking rape and violence accusations. Dan's mother Michelle tells the family's story on the Mothers of Sons website here.

Dan Jones ended up in prison as a result of his former fiancé Sara Jane Parkingson making 32 false allegations of rape and violence to punish him for breaking off his engagement after discovering she was having an affair with a NSW policeman. It's an extraordinary tale involving Parkingson's crooked cop boyfriend and his NSW police buddies staging a rape crime scene and doing everything they could to destroy Dan and his family. Dan was imprisoned purely on the basis of these false allegations; and it took five years and over $400,000 in legal fees to get Dan out of prison and finally get Parkingson imprisoned.

It turns out the man driving this whole fiasco was Shane Drumgold's predecessor, Jon White, another DPP with a reputation for bending the rules to ensure prosecution of a rape case. White pushed ahead with all 32 charges despite being informed on at least three occasions by another senior prosecutor that there was no evidence to support the case. Even after excellent work by a female detective proved Dan had been framed and he was released from prison, it took another year for White to drop the charges and he asked for a surety of $200,000 when Dan wanted to move back to WA. A female judge was scathing about White's request and set the surety at $200.

The damage to this family as a result of this malicious prosecution was immense, with Dan's parents ending up divorced after spending all their savings trying to save their son. When I first broke the story by interviewing Dan Jones on YouTube four years ago, many of my supporters wrote to the ACT government seeking an ex gratia payment for malicious prosecution. The Jones family has met with the ACT Attorney General, and written complaints to the ACT Ombudsman and the Commonwealth Ombudsman - all to no avail. If calls for a re-examination of ACT sexual assault cases meet with success, we must ensure the Jones case is included, given that Drumgold's predecessor behaved equally badly.

Brittany Higgins welcomed the ACT inquiry, posting on Instagram that "daylight is the best disinfectant". She clearly didn't foresee this harsh light would further expose the lack of evidence supporting her rape allegations and take out her good mate Shane Drumgold. There's much to celebrate in the public examination of the ideological zeal driving our prosecutors- hopefully this scrutiny will extend to the systematic undermining of the rights of men accused of sexual assault. Drumgold's wrongdoing is not an anomaly in the system, rather a natural consequence of the decision to let ideologues run the show.