Response to Prima Facie – Bri Lee

Her acclaimed 2018 book charted Bri’s experience through the Australian legal system as the daughter of a policeman, a law student, and as a judge’s associate in both metropolitan and regional Queensland. Until one day, just like Tessa in Prima Facie, Bri found herself taking the witness stand to tell her own story.

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It has been almost four years since I was in a courtroom, and Prima Facie made it feel like yesterday. When Tessa goes to the police station and thinks of how she would really prefer to speak to a woman officer, but none are on duty, and she’s not sure she’ll have the strength to leave and come back again, so she sits down with the gruff man, I thought: I’ve been there. Exactly, precisely there. When Tessa gets a message from the man who had just assaulted her, she says the “phone feels contaminated” and deletes the message, then immediately regrets getting rid of potential evidence, knowing she should have known better, I thought: I have made that exact mistake. Tessa waits two years and 33 days, from the assault to the trial. Although mine was a historic allegation, there were two long years of delay from my police complaint to my trial. When she talks about what it has cost her, to make that two-year journey, I thought: I know the exact price you have paid. It was uncanny and sometimes uncomfortable to watch this play because Suzie Miller gets it all so very, unfortunately, right.

The legal profession itself is also on trial here, and it is presented with clarity rather than flattery. The arrogance of the barrister on a winning streak. The confident façade overlaying the first-in-family, fake-it-till-you-make-it imposter syndrome of the young woman lawyer. The shenanigans in chambers. The drinking, the pecking order, the politics; all of it. When I was growing up and for a short time entertained the idea of wanting to act, my father (then a police prosecutor) told me to become a defence barrister, because they were the best actors he’d ever seen. Sheridan Harbridge as Tessa is both — it’s a bit meta, really. You don’t notice the layers when you’re first watching the play, because you’re too gripped by the action unfolding, but it will sit with you. You will chew on them. Barristers act for their clients, after all. There is a dry and black humour I adore in lots of lawyers, and Harbridge as Tessa walks the tightrope magnificently. What is that two-year journey if not a one-woman play, the star witness going over and over her lines?

Our society is endlessly fascinated with the defence lawyer. The way we are enthralled in particular by women defence barristers is offensive to everyone; expecting less empathy from men is not okay. Someone asks Tessa, does she think she’s getting a lot of sexual assault briefs because she’s a woman and it “looks better”? Tessa replies, “I’m sure they are!” But she insists it’s not her job to question the why of being briefed, only her job to run the brief. A lot of the phrases Tessa uses in the early parts of this play I swear I’ve heard real defence barristers say: “It’s not emotional for me. It’s the game. The game of law.” Yet also, “We believe in the law. We believe in the system. We believe in innocent until proven guilty.” And also that they are “The ones who do not pre-judge you, who trust the system.” But on the other hand, “We play by the rules, we are officers of the court, we’re just the voice piece.” And also “Keep the police honest. Protect society.” While simultaneously, “A good lawyer just tells the best version of their client’s story.”

So which is it? Do they serve the court and society, or their client? Sometimes these conflict. Is it a game or is it a human right? Depends who’s asking. Do they treat everyone as innocent or do they refrain from making judgment? The positions are mutually exclusive yet frequently conflated. We wouldn’t be so enthralled by barristers if they didn’t come with all the pageantry. The wigs and robes, the chambers, the deliberately obscure language, the rituals of admission, the hierarchy… it’s a package. We love a rockstar Senior Counsel. We loathe an ambulance-chaser. When you start your law degree and there are thousands of you in Legal Research Methods 101, everyone is talking about how they want to be a “human rights lawyer” or go into “international policy-making”. It’s competitive exactly the way Tessa describes it, but it’s also full of the idealism of 20 year-olds. Then, in the five-year rinse-and-spin cycle, you come out the other side, and people are fighting for clerkships at commercial law firms whose biggest clients are banks and oil companies, and the rest of the kids are getting grad jobs at their local 1300-CRIMDEFENCE office. A smattering of people commit to the righteous path of the Legal Aid solicitor, forgoing the salaries and perks of their peers, and notoriously they work themselves to the bone and burn out. Tessa has all the wilful blindness of the aspirational middle-class Australian. Her mother cleans the types of offices she now works in. Therefore, she is a success story. She is a successful woman in a male-dominated industry, therefore, a feminist?

I wonder when in time — I mean in the history of the British common law system and its violent arrival in Australia — the farce of the law being ‘fair’ entered public rhetoric. As Dickens wrote in Bleak House, ‘The one great principle of English law is to make business for itself.’ Historically the general public have been right to regard the legal ruling class with suspicion. Yet these days, when people are publicly accused of criminal conduct, the screaming replies come: “He has a right to a fair trial!” I wonder what trial process they have in mind. Because there’s no trial process in Australia, especially not for a sex crime matter, that is “fair” for anyone. A defendant having to sit in a dock can be prejudicial. Trusting that jurors won’t Google anything when they go home is absurd. Statistically speaking, people think women tell lies more than men do, and people who speak in accents aren’t trustworthy. By the time you enter into a courtroom, everyone has lost. It ought to be a last resort, and acknowledged as a terribly faulty process, in constant need of improvements and bettering. But lawyers are fantastically good at making business for themselves, and the system is working for them, and anyways, they’re just “vessels” and “tools” and “voice pieces”. It would be crazy to suggest that the people doing the law affect the way the law is done! Absurd to suggest that those who benefit from a system have a corresponding obligation to leave it better than how they found it!

It has been just over three years since the first opening night of Prima Facie at Griffin Theatre in Sydney. The #MeToo movement may have hit the global mainstream in 2018, but it’s fair to say the impact has been more acutely felt in Australia in 2021. Former Attorney-General Christian Porter is still an MP and it seems like there will never be an inquiry into the allegations made against him. We don’t yet know if the man Brittany Higgins accused of sexual assault will be charged (let alone found guilty) and we may never know who ordered the office in which the event allegedly took place to be steam cleaned. Tens of thousands of people around the country marched for justice in March but our demands were not heard or answered. The Prime Minister said we were fortunate to live in a country where we weren’t shot for marching, because “elsewhere, protesters are being met with bullets”.

There are also glimmers of hope. In 2018, the year Prima Facie won the Griffin Award, Saxon Mullins spoke out about her years-long ordeal through the courts, up against archaic consent laws, and the New South Wales Attorney-General Mark Speakman ordered a review the very next day. In May of this year Speakman went one step further than what the New South Wales Law Reform Commission recommended, and committed to an affirmative model of consent. I was there in the room as he made the historic announcement: it’s still up to the prosecution to prove everything beyond a reasonable doubt, but if a defendant wants to claim that they had an honest and reasonable belief the complainant was consenting, the defendant will need to have actually said or done something that led them to have that belief. New South Wales is now a leader in this space. My fingers are crossed the arrival of Suzie Miller’s powerful play will coincide with progress in Queensland too.

— Bri Lee

Queensland Theatre’s season of Prima Facie runs at the Bille Brown Theatre until Saturday 7 August. You can find out more about Bri Lee, who recently released her third book Who Gets to be Smart, on her website.