Naturally Twitter exploded yesterday after the news that the trial of Brittany Higgins’ alleged rapist, due to commence next week, has been vacated and will be put off for some months. “Precious lawyers,” I keep reading, “protecting their exclusive turf and treating the rest of us like children.”
There is, I agree, a reasonable conversation to be had about the utility of the sub judice contempt rule in the age of social media. In the meantime, the law is still the law. Since we’re all so excitable about the rule of law, how about we fucking comply with it?
Chief Justice Lucy McCallum of the ACT Supreme Court had every right and reason to do what she did, in the interests not just of the accused, Bruce Lehrmann, but all of us. So easily lost in the maelstrom of Me Too is the slightly subtle point that believing survivors is not the same thing as discarding the presumption of innocence.
The sub judice rule is one of the first lessons taught to budding journalists. As McCallum said: “Extensive media reporting of allegations of criminal conduct is not a mischief in itself. On the contrary, it is appropriate to recognise that the media play an important role… What is a potential mischief is the capacity for media reporting of such issues to spread in such a way as to interfere with the fair and proper determination of any related matter before the court. That danger is particularly acute in the case of pending criminal proceedings.”
For the media, it can be a tricky balance, but the basic principle is to not prejudge guilt; that’s why they’re usually so assiduous about sticking “alleged” in front of everything. As the trial gets closer, the sensitivity should increase. A week out from trial, they should be publishing nothing about the case, the complainant or the accused except the bare facts of the criminal process. When the trial begins, they can report it as it unfolds.
In that context, what happened is utterly baffling. McCallum recorded in her judgment that Lisa Wilkinson, who had interviewed Higgins on Ten’s The Project when she first revealed her allegation, met with the Crown prosecutor on June 15 because she was going to be called as a witness.
Wilkinson specifically raised with the prosecutor the fact that she was up for a Logie award the following week and had prepared a speech. The prosecutor told her they couldn’t tell her what she could or couldn’t say, but warned her that the defence could “reinstitute a stay application [to stop the trial going ahead] in the event of publicity”.
McCallum went on: “Notwithstanding that clear and appropriate warning, upon receiving the award, Ms Wilkinson gave a speech in which she openly referred to and praised the complainant in the present trial.”
The judge noted comments made by radio hosts Jonesy and Amanda the following morning, in which they clearly “assumed the guilt of the accused”. Higgins posted on social media repeating some of Wilkinson’s remarks; the circumstances “amounted to Ms Wilkinson endorsing the credibility of the complainant who, in turn, celebrated Ms Wilkinson’s endorsement of the complainant’s credibility”.
As McCallum concluded: “The prejudice of such representations so widely reported so close to the date of empanelment of the jury cannot be overstated. The trial of the allegation against the accused has occurred, not in [the court] but in the media.”
She’s right: the “alleged” has been lost along the way, rendering Lehrmann’s trial unsafe. Whether he is criminally guilty or not, which is for the jury to decide, his entitlement to a fair trial is in all our interests.
What is so deeply frustrating about this situation is how easily it could have been avoided. Lehrmann’s lawyers had had a go earlier this year at getting his trial permanently or temporarily stayed because of the intense publicity surrounding the case, and McCallum had refused it. She was alive to the risk, but concluded that it could be managed. Yesterday she said in open court that she had placed way too much trust in the media to play its part responsibly.
This debacle is not the fault of social media, where of course Lehrmann has been and will continue to be tried endlessly. That can be ignored. The platform afforded a major media personality, giving a speech at the industry’s main awards ceremony, cannot. Nor can the broadcast power of breakfast radio.
All the media had to do in the final weeks before the trial was shut the fuck up about the case. Some of them chose not to. The result is a disaster, for Higgins more than anyone else. I have inadequate words to express my sympathy to her.
Everyone needs to go back to journalism school and relearn their first lesson. Please let’s not find ourselves here again.
