The Murdoch broadsheet has been smacking its chops over what it claims to be the leaked findings of Walter Sofronoff’s inquiry into the conduct of Bruce Lehrmann’s rape trial.
“Trial treachery: the lies of unethical Drumgold,” screamed the headline. It doesn’t get much more in your face than that.
The agenda at play is a dizzying cocktail involving reheated remnants of the culture wars with animus towards the complainant in the case, Brittany Higgins and the #MeToo movement and complaints about the use of “victim-centric” language.
It has required acres of print about the long-suffering Senator Linda Reynolds, in whose ministerial office Higgins says she was raped; protection of the previous government which mishandled the “problem” shortly before the 2019 election; and simultaneously banging nails into the coffin of the ACT’s Director of Public Prosecutions Shane Drumgold, who had the temerity to prosecute a former Liberal staffer.
We’ve seen defamation writs flying and threats of more reputation repair litigation rushing towards us, and now there’s the fallout from how and why the report landed prematurely in the lap of the very media people whose presses had been so assiduously primed.
And it’s still not over till someone in a Wagnerian harpies costume starts singing.
It’s easy to get carried away with exciting news, but it’s also important to try and get a grip and remember we haven’t actually seen Walter Sofronoff’s report.
What we’ve seen is a cherry-picked version of it by journalists at The Australian. Perplexingly, Sofronoff gave the report to journalists at the ABC and The Australian, under embargo.
That was before it went to the Chief Minister of the Australian Capital Territory, in whose jurisdiction the charges had been brought and the rape trial conducted.
Interestingly, the ACT Inquiries Act has a number of sobering provisions. It appears that the report is the property of the chief minister and all the documents associated with the investigation are to be kept in his custody for “safekeeping”.
It is not the function of the people who prepared the report to be giving it to anyone other than the chief minister of the ACT. To do otherwise risks defying the Act and undermining the functions of the territory government.
There is another section in the legislation that restricts the disclosure of information by members of the board of inquiry or members of its staff.
The Australian claims it has not broken any embargo because serendipitously it had another leaked copy of the exact same report that conveniently is not the subject of an embargo.
Some with a long history in journalism may have heard that one before. The ABC has also published a version of the report.
The extent to which the reporting of an improperly released report is privileged or its findings relied on might also be questioned.
Importantly, the DPP Shane Drumgold has been blindsided without an opportunity to respond to the attacks made on him. He did respond privately to an earlier copy of the proposed adverse findings – the legislation requires that in the interests of procedural fairness.
Yet, he has still not seen the full report and to that extent has been denied the fairness of a right of reply.
From what we’ve read in the Murdoch press there are aspects of the report which readily provide the DPP with an opportunity for response – such as the findings about failure to disclose material to the defence and references to Senator Reynolds – aspects of which were the subject of applications before the court for decision as part of the litigation process.
Long we have endured thunderbolts from journalists at The Australian about the rule of law, procedural fairness, and trust in the criminal justice system – all of which must be sticking in Drumgold’s craw.
The mishandling of the report and extent to which that affects its standing is as consequential as any of its findings.
Late last year The Australian reported advice from the Canberra police that Lehrmann should never have been prosecuted. It’s something of a relief to learn from the newspaper coverage of the pirated report that Drumgold was justified in bringing the prosecution against Lehrmann.
Still the same news hounds maintain that Lehrmann will net millions of dollars in compensation and Drumgold could be prosecuted for allegedly perverting the course of justice.
Still on foot are Lehmann’s defamation actions against Network Ten over an episode of The Project in which Higgins made her rape allegation, and against the ABC which broadcast a speech by Higgins at the National Press Club.
In May he settled a claim against News Corp’s online arm, News Life Media. The settlement did not involve the payment of damages, or publication of an apology or correction.
Senator Reynolds, meanwhile, is suing Higgins and her boyfriend David Sharaz over social media posts. In April this year the senator settled a case she brought against HarperCollins and reporter Aaron Patrick over a passage in a book about Malcolm Turnbull called Ego.
She also settled a case brought against her by Higgins, after she called her former staffer a “lying cow”. Reynolds explained that she “did not mean it in the sense it may have been understood” - thereby opening up fresh possibilities that “lying cow” is also an entirely supportive remark.
The former Defence Minister has promised to refer to the National Anti-Corruption Commission the settlement of a personal injury claim the Commonwealth paid to Higgins.
Higgins has said she is being targeted by Reynolds and it is “time to stop”. Reynolds says she has “had enough” and fired off another writ.
The lawyers are spreading the largest and most luxurious picnic rug over some pretty lush grass.
Richard Ackland writes at 500Words.com.au
