Theophanous saga demands hard questions be answered

All of which prompts the question: why was the case brought?

THEO Theophanous had this to say after the rape charge against him was dismissed on Friday: "I just hope that there are some lessons to be learnt arising from this, for all sides."

After the sensational headlines, the spatting between lawyers, the political hand-wringing and the devastating critique by magistrate Peter Reardon of the prosecution's case, a few lessons would indeed be useful.

The allegation was that in September 1998, Mr Theophanous - a long-time MP and senior Labor minister - invited a friend to take a late-night tour of State Parliament where he raped her on his office couch, covering her mouth to stop her screaming. It was a startling allegation and Mr Theophanous, then the minister for industry and trade, stood down from the ministry while the claims were investigated.

On Christmas Eve, he was charged. After a three-week committal, Mr Reardon dismissed the case. This was unusual - normally in sexual assault cases that hinge on one person's version of events versus another's, magistrates tend to leave it to a jury to decide. But the evidence presented was so flimsy, Mr Reardon did not believe any jury properly instructed could convict. The case, he said, was "inherently weak (and) lacks credibility, reliability and truthfulness". The alleged victim was "an entirely unreliable witness".

All of which prompts the question: why was the case brought? Mr Theophanous is a controversial figure, a factional powerbroker who has gathered many political enemies as well as friends. None of which justifies what he has been put through given Mr Reardon's assessment of the evidence. Police are right to carefully scrutinise allegations against well-known people so they are treated the same as anyone else. But Mr Theophanous' barrister, Robert Richter, QC, was also correct when he said that the charge itself effectively destroyed the career of a senior public figure. (Mr Theophanous remains an upper house MP and will consider his future over the weekend.)

Why did it take 15 months for the police to obtain a statement from the woman alleging rape? Was it true that, in the words of Mr Reardon, the lead police investigator, Detective Sergeant Doug Smith, simply accepted the woman's complaint "without objectivity"? How carefully were the witness statements scrutinised? (Reportedly, the police are investigating whether Mr Theophanous interfered with witnesses, a claim he denies. They should do so expeditiously to prevent further damaging speculation.)

Mr Reardon allowed it, but we would also question whether it was fair that allegations from an unnamed intern that Mr Theophanous sexually harassed her in 1998 should have been admissible. What relevance was that claim to the rape case? So-called "propensity" evidence is controversial and rightly so.

The outcome is also devastating for the woman, who has been labelled a liar and a fantasist, motivated by money. Mr Reardon said he was confident that she did believe that the rape happened and that he was concerned for her welfare. Nonetheless, it is outrageous that the Office of Public Prosecutions has fought to keep the transcript of her evidence secret, because it could reveal her identity and undermine the policy that sexual complainants should be protected from publicity. The Supreme Court will decide the matter and should release the transcript, deleting any identifying material. It is crucial for public confidence in the legal system that such evidence be scrutinised.

The Sunday Age hopes that this case has no broader significance, but we fear that it might. The conviction rates for rape in Victoria are pitifully low and there have been genuine attempts to give victims a fairer go through the legal system. Lawyers can no longer question a woman about her sexual history, for instance, and a victim can give evidence remotely rather than face their attacker. In 2007, Victoria introduced reforms designed to make women - and men - more confident about bringing a complaint. But rape remains a serious charge and, especially when the event occurred many years before, any claim must be rigorously examined before a charge is laid, for the sake of the victim as well as the accused. From the evidence in this case, there was too little rigour. Lessons, indeed, need to be learnt.