It remains to be seen whether or not the sensational rape case against Victorian Labor Minister Theo Theophanous is over.

There are a number of intriguing possibilities. One, that Jeremy Rapke QC, the Victorian Director of Public Prosecutions, has yet to decide whether to override the Magistrate’s discharge and send Theophanous to trial by way of a direct presentment. It is difficult to predict what will happen here. Rapke is a very tough and honest DPP and he will not be afraid of the political fallout. On the other hand, it may be that the alleged victim was so damaged in cross-examination and is now so distressed that she can never recover to become a compelling witness. I think it is unlikely that Rapke will act.

Two, Theophanous is now (as a matter of law) an innocent man who has been badly treated by the alleged victim and, possibly, by the police and the prosecuting authorities. He has the right to bring a civil action for damages for “malicious prosecution” against her, the police and the DPP. Such an action, if successful, would likely bring an award of millions of dollars compensation. But will he do it?

The big problem with such an action is that Theophanous would, for the first time, have to give his version by sworn evidence and be cross-examined. So far, he has not been questioned. Any cross-examination would be very unpleasant. Theophanous has already sued the woman in Greece, so it is difficult to see why he would not replicate that here. The fact is, he has a remedy which would provide adequate compensation: if he does not sue then he can hardly complain further about his bad treatment.

Three, the media suggest that someone close to Theophanous is being investigated by police about the alleged fabrication of evidence. There is no suggestion that Theophanous is involved, but if charges are laid, we can expect more headlines. It is possible that Theophanous would be called to give evidence.

All that one can safely predict is that this case seems to have a life of its own.

Finally, the magistrate. Some lawyers have expressed surprise that Theophanous was discharged. The media reports that the magistrate said the case was “inherently weak, lacks credibility, reliability and truthfulness.” Fair enough, but that is really a matter for a jury. Even if a trial judge held that view, he would have to leave the case to the jury.

This is something that Rapke will be pondering.