Other personal threads of mine were being gathered up during this same period. In August 2003 I had produced a segment on a South Australian whom I am obliged to refer to as Mr B. He had been falsely accused of raping his wife in 1999. It wasn’t the type of story I was attracted to because domestic disputes are difficult to resolve, and if there are accusations of rape it’s not something you want to get wrong. However, in this case the victim had admitted in court that she’d lied in her evidence and she was assisted by police officers who had also given false witness statements. It was also obvious to me that B.’s defence lawyer had let him down. These were the elements I thought worthy of reporting.
In the first of B.’s trials, his lawyer had failed to clear up confusion over when the crime was alleged to have been committed. He had neglected to distinguish between the ‘evening’ before midnight and the ‘evening’ after midnight, which really should have been described as the ‘next day’. This simple misunderstanding in his description of time rendered his client’s alibi useless. B. was convicted.
Remarkably his lawyer volunteered a written confession stating he had been too embarrassed to correct his error, even when given an opportunity by the trial judge. As a result the conviction was quashed on appeal and B. was sent back for a retrial. For a second time he was convicted but again the conviction was set aside on appeal because his wife admitted lying in court. B. lost his reputation, home and business and had to spend nine months behind bars. As I read the transcripts and findings I noticed the first appeal judgement, published on the internet in September 2000, identified B. and, by referring to the victim as his wife, had thus identified her as an alleged victim of sexual assault, which is an offence. When later B.’s conviction was quashed and his wife was exposed as a liar it seemed axiomatic that she could no longer claim the status of an ‘alleged’ victim. She had effectively rescinded her allegation and the court had determined it to be false. I, too, identified her in my story.
One morning in late 2003 Graham Hunter, the veteran court reporter with Seven News, poked his head into my cave-like office to say that someone from the DPP’s office had approached him during his morning’s court rounds to ask who ‘owned’ Today Tonight. It was an odd question but pointed to the possibility they were preparing documents aimed at charging me and the program with contempt.
A few hours later I overheard our office manager take a call and respond quizzically with, ‘Who owns Today Tonight?’ I leant forward and asked her to transfer the call to me. I introduced myself and found I was talking to someone called Stacey. When she repeated her question I said it was a very strange one. Stacey explained she was a student and that she was doing some research in which she was asking ‘all the channels’ the same question. That made no sense, but I gave her the corporate details she was seeking and then said, ‘Now you can tell the DPP what to write.’ Stacey assured me that she didn’t know what I was talking about and that she didn’t have any connection with the DPP.
The moment our call concluded I rang the DPP’s office and asked to speak with Stacey. Sure enough, there she was. ‘You got a job quickly,’ I said, and then asked a shocked Stacey to put me through to Paul Rofe. When I finally got onto Rofe he threatened to bring the roof down on those responsible. I pointed out that it was a bad look for the state’s prosecutorial body to be lying about who they were to a potential defendant who is also a member of the media. He assured me it was the work of one of his solicitors and not Stacey’s fault. After that things went quiet, but it wasn’t the last I’d hear from the DPP.
The potential contempt charges surfaced. I knew something was coming because of Stacey’s earlier call, and because I’d been told Michael Atkinson was overheard around parliament referring to ‘that criminal, Archer’. When the subpoena arrived in March 2005 I was charged under Section 71A (4) of the Evidence Act 1929 with the offence of ‘publish[ing] without authority’. I checked to see if the Supreme Court judgement identifying the ‘alleged’ victim was still on the net. It was, and still is to this day. The charge was extended to the Today Tonight presenter Leigh McClusky and Festival City Broadcasters, or radio FIVEaa, to whom Leigh had spoken when promoting the story. The Advertiser’s headline the following day, ‘TV presenters to stand trial over sex case claim’, made it sound as if we’d been involved in some sordid sexual scandal. The charges against the other two defendants were eventually dropped, which left just me.
Two days before the trial, set for May 2006, I was alarmed to learn that the DPP’s case was not to be prosecuted by a lawyer from the Office of the DPP but by the Solicitor-General, Chris Kourakis. The idea of the government’s top barrister, whose normal stage was the High Court of Australia, turning up at the humble Magistrates Court to pursue a $2000 contempt case seemed extraordinary. It didn’t raise a murmur. No sign of the amicus curiae rushing to the barricades as they had done in the Nemer case, when Kourakis stepped in over Paul Rofe. No debate in the media about the independence of the DPP or whether political interference had now become standard procedure on selected cases or selected defendants. What could possibly explain the presence of such a high-powered prosecutor? The official explanation was that the DPP were short-staffed and Kourakis was just pitching in to help out with their workload. Given I saw the DPP’s solicitor, who had been handling the case up until then, turn up for the trial and sit in the body of the court, I thought that explanation wasn’t at all convincing.
Getting up in the morning to attend your own criminal trial isn’t a good thing. Up the steps I went into the city Magistrates Court along with all my dishevelled, tattooed and hardened colleagues-in-crime. I felt less estranged from them than I normally would. Exiting the lift on the third floor I was confronted with an array of courtrooms around which congregated police, lawyers, clients and various friends and family. We were a sorry bunch, even if I was a trifle overdressed for the company.
I had no absolute defence because I had identified the person involved. All I could do was reduce my culpability. I took the oath and explained to the magistrate I did think the Supreme Court’s disclosure on their website protected me; I had sought legal advice before the broadcast; and that if there was no crime, surely there couldn’t be a victim, alleged or otherwise. Kourakis in cross-examination read the first line from the story, ‘This is H.’s story … It’s also another case of justice, Adelaide-style.’ He asked, ‘So what is “justice, Adelaide-style”, Mr Archer?’ I reminded him that he’d played a substantial role in defining ‘justice, Adelaide-style’ when describing the ‘inept’ plea bargain in the Nemer case. I suggested he ought to have a good grasp of that topic. Kourakis moved on to things more specific to the case.
My lawyers, in trying to argue that I had merely followed the lead of the published judgement in identifying the alleged victim, sought to subpoena the Supreme Court’s procedures in vetting judgements to ensure they don’t breach the orders they are obliged to enforce. We waited hopefully for the response. It came from the Chief Justice, John Doyle, who rejected our subpoena. The workings of the justice system would remain free from interrogation.
After an anxious wait I was found guilty, but fortunately no conviction was recorded. At an impromptu press conference outside the court the reporters appeared interested but there was no detailed publication about Kourakis’s unique prosecutorial role in the Magistrates Court.