Will the Lehrmann verdict end trial by media?

Rocco Loiacono I 15 April 2024 I The Spectator Australia

The Bruce Lehrmann-Brittany Higgins saga reached its conclusion this week with Federal Court Justice Michael Lee handing down his judgment in Lehrmann’s defamation action against Network 10 and Lisa Wilkinson.

We now know that Justice Lee found, on the civil standard of proof – the balance of probabilities – that Lehrmann raped Higgins on that fateful night back in 2019, meaning that Channel 10’s defence of truth has been upheld. ‘Having escaped the lion’s den Mr Lehrmann made the mistake of coming back for his hat,’ remarked Justice Lee.

Yet, as the judge himself said, ‘for more than a few’ this matter ‘has become a proxy for broader cultural and political conflicts’.

Critically, he described the case as an ‘omnishambles’ and called out the ‘unexpected detours and collateral damage’ caused.

These unexpected detours and collateral damage saw numerous antagonists captured by identity politics and/or an end justifies the means mentality, as well as damaging all those involved in one way or another.

Justice Lee found that Lehrmann and Higgins were ‘unreliable historians’ and spoke to their ‘poor credit’ as witnesses.

Importantly, he indicated that he found it to be untrue what Higgins said in her attempts to win a $2.4 million settlement from the Commonwealth.

Readers will recall the disgraceful lack of due process and transparency in the awarding of taxpayer-funded compensation to Higgins to settle her claim against the federal government. This was despite no finding of wrongdoing made against anyone at the time and without the opportunity for those accused of wrongdoing, namely former Liberal ministers Michaelia Cash and Linda Reynolds, to test the allegations made against them.

Indeed, Reynolds was coerced into not attending the mediation under threat of the government refusing to pay her legal costs.

Reynolds herself is embroiled in legal proceedings against Higgins that are ongoing.

Recall that Reynolds became a target for Finance Minister Katy Gallagher and Foreign Minister Penny Wong.

They alleged Reynolds was part of a political cover-up of Higgins’ story. However, secret text messages published by The?Australian?showed Gallagher was involved in the story before Higgins’ interview on Channel 10’s?The Project. Seemingly, all this was done with the intention of bringing down a government, notwithstanding Gallagher’s holier-than-thou denials about what she knew and when in Senate hearings.

Arguably, a greater casualty than Reynolds is her chief of staff at the time of the sordid goings on, Fiona Brown, who has lost her livelihood as a result.

Justice Lee said he ‘unhesitatingly’ preferred the evidence of Ms Brown to that of Higgins or Lehrmann, heralding her integrity for standing up to ministers who wanted her to report Higgins’ claims of rape without the latter’s consent.

Who could forget former Prime Minister Scott Morrison, under cover of parliamentary privilege, no less, making a point of apologising to Higgins personally following the allegations she raised against Lehrmann, even though those allegations had yet to be proven in court?

Morrison had no compunction in trashing the presumption of innocence to embrace toxic identity politics for some perceived electoral benefit. Seemingly for him, too, the end justified the means.

The Sofronoff inquiry revealed that the Director of Public Prosecutions for the ACT, Shane Drumgold SC, may well have strayed from acting as an objective minister of justice to acting as Higgins’ lawyer, which is untenable, since it undermines the public’s trust in the criminal justice system. It appeared that Drumgold was prepared to get a conviction at any cost, accusing the police of investigating Higgins’ allegations of not doing their job properly. He, too, was embroiled in the political conflicts Justice Lee mentioned, and rightly that cost him his job.

Walter Sofronoff KC could also count himself as collateral damage, given he was accused of bias against Drumgold, even though all but one of Sofronoff’s findings against Drumgold were upheld.

As for the media, while Channel 10 and Wilkinson may claim to have been vindicated, their conduct was castigated by Justice Lee.

It was Wilkinson who gave the speech at the Logies in 2022, eight days before the criminal rape trial of Lehrmann was due to begin, which caused the trial to be delayed by a matter of months.

Lee slammed Wilkinson, finding that she displayed a ‘lack of candour’ in the witness box, in relation to her asserting that?The Project’s?treatment of Fiona Brown and Senator Reynolds was fair, as well as by refusing to admit that the Logies speech conveyed ‘a representation that Miss Higgins rape allegation was credible and to be believed’.

It emerged in the trial that the speech was indeed approved by Channel 10’s lawyers before Wilkinson gave it. ‘The conduct of Ten … was grossly improper and unjustifiable,’ Justice Lee said, especially with regard to?The Project’s?accusation of a political cover-up by the Morrison government of the rape allegations, which was the reason Higgins’ boyfriend David Sharaz gave to Wilkinson for pursuing Higgins’ story.

‘(It did much) collateral damage, including to the fair and orderly progress of the underlying allegation of sexual assault through the criminal justice system,’ Lee stated, tellingly.

Therein lies the lesson of this sordid affair. Trial by media damages irreparably not only those against whom allegations are made, but, most importantly, our justice system.

In other words, if allegations of criminal behaviour are to be made, they are to be made to the police, not the media. Indeed, Justice Lee stated that Ten’s treatment of Lehrmann in airing the rape allegations ‘fell short of the standard of reasonableness’.

Unfortunately, over recent years there have been too many occasions where media outlets consider themselves to be judge, jury and executioner, meaning the fundamental right to a fair trial – and the search for the truth – are severely undermined.

On each of those occasions, lives and reputations have been irreparably damaged, as well as the criminal justice system. While it may be imperfect, it must be allowed to do its job, for the sake of all those falsely accused of a crime they didn’t commit and the sake of genuine victims of a crime falsely denied by its perpetrator.

Author: Rocco Loiacono