The trial of the man accused of raping Brittany Higgins will be delayed , likely to October, due to public comments on the case that could “obliterate” the distinction between an allegation and finding of guilt.
At an urgent ACT supreme court hearing on Tuesday, the chief justice, Lucy McCallum, ruled “regrettably and with gritted teeth” to vacate the trial, which was set to begin on Monday, due to comments by journalist Lisa Wilkinson and broadcasters Amanda Keller and Brendan Jones.
Bruce Lehrmann’s lawyers had argued that Wilkinson’s “extraordinary” comments in her Sunday Logie speech endorsed Higgins’ credibility and were “clearly a contempt of court”.
Lehrmann has been charged with sexual intercourse without consent. He denies any form of sexual activity took place in early 2019 and is pleading not guilty.
In April, Lehrmann’s lawyers unsuccessfully applied to delay or stop the trial, because McCallum was satisfied any potential prejudice to Lehrmann could be prevented by appropriate directions to the jury.
McCallum at the time refused a bid for suppression orders to prevent further publications about the case – a decision she rued at Tuesday’s hearing as based on “misplaced” trust in the press and the law of contempt to prevent further prejudice.
On Sunday, Wilkinson won the Logie for most outstanding news coverage or public affairs report for her work on the Higgins story.
McCallum told the hearing that what concerned her about Wilkinson’s Logies speech and an interview with Jonesy & Amanda on radio on Monday morning was that the “distinction between an allegation and finding of guilt has been completely obliterated in the discussion”.
“The implicit premise of the speech was to celebrate the truthfulness of the story she [Wilkinson] exposed,” McCallum said.
“It’s a crowing of the success of good investigative journalism, that resulted in this important truthful story being told as it should have been.”
Delivering judgment, McCallum noted Wilkinson was aware she would be a witness at the Lehrmann trial.
She read from a file note of a meeting with the director of public prosecutions on 15 June in which Wilkinson was “appropriately warned” that the defence could seek a further delay “in the event of publicity” about the case.
McCallum quoted Keller’s remark that Higgins “was raped in parliament house”, with Jones adding Higgins was interviewed “in the very room she was raped”.
“My purpose in quoting those – [is to demonstrate that] each of those assumed the guilt of the accused in those remarks,” McCallum said.
Similarly, remarks on social media “almost universally assume the guilt of the accused”, she said.
“Somewhere in this debate the distinction between an untested allegation and the fact of guilt has been lost.
“The law of contempt … has proved ineffective in this case.
“The public at large is given to believe guilt is established. The importance of the rule of law has been set at nil.”
McCallum noted the “irony” that the debate about the shortcomings of courts in delivering justice to sexual assault complainants had “evolved into a form of discussion which at this moment in time is the single biggest impediment to achieving just that”.
McCallum said delay was in nobody’s interests, as Lehrmann faces the prospect of an “immobilising force in his life” while delay also has a “corrosive” effect on evidence.
But she concluded that the “immediacy and intensity” of public commentary, and its “capacity to obliterate the distinction between an allegation untested at law and [the conclusion of a jury” had “changed the landscape”.
McCallum said the prejudice from such remarks “so close to empanelment of a jury cannot be overstated”, and could not be remedied by directions.
McCallum said she was not in a position to say how long the trial would be delayed for, but that she wanted it “to be heard this year if it can be”. October would be an appropriate time for “dissipation of prejudice”, she said.
McCallum asked the ACT director of public prosecutions, Shane Drumgold, if he wished to seek injunctions to prevent further commentary on the case. She suggested these could be directed at Wilkinson, Higgins, The Project, Jonesy and Amanda.
The matter was stood over to 9.30am Thursday for a mention only. At that hearing, a date will be set to discuss further orders.
Earlier, in the hearing, McCallum said that reporting of the Higgins story had resulted in the conflation of the stories of Grace Tame, whose abuser was convicted and served a prison sentence, and Higgins, whose allegation had not yet been tested or proved in a criminal case.
“Ms Higgins is treated as being in the same category. She’s not,” McCallum said.
“She may be – it may be just a temporal difference, and she can speak the same way as Grace Tame [after a possible conviction]. But at the moment her allegation is not in that category.”
McCallum noted in previous hearings she had issued “stern warnings” to the media about its reporting, but her trust had been “misplaced”. “You were right, and I was wrong.”
Drumgold had resisted the application, arguing the impact on a fair trial was only “marginal” because Wilkinson’s evidence at trial would largely be corroborated by emails and recordings of her interactions with Higgins.
“The credibility of Lisa Wilkinson’s substantive evidence will not be in dispute,” Drumgold claimed. This prompted a warning from Lehrmann’s barrister Steve Whybrow not to verbal him.
Drumgold said that Wilkinson’s opinion of Higgins’ story “hadn’t changed”, and had been ventilated previously including at the March 2021 march for justice.
But McCallum suggested Wilkinson’s comments came with “higher endorsement”, because they came after receiving a “glittering award for good journalism”, were made with “greater intensity and more proximate to the trial”.
When Drumgold suggested the award was for journalistic skill, not just the truth of the allegation, McCallum quipped that good journalism should also be judged by its “impact on criminal proceedings” and should be remedied by use “of the magic word – alleged”.
Drumgold said that prosecutors, the defence and court all spoke “with one voice” that media coverage had been “completely undesirable”, but the test for the trial delay is whether jurors were exposed to the comments and whether prejudice could be remedied by directions to the jury.
Drumgold said jurors could be instructed “with force” to “put out of your mind everything you think you know about this case”.
Whybrow accused Wilkinson of comments that were “clearly a contempt of court”.
He noted that Higgins had endorsed Wilkinson’s comments at the Logies, and both had trended as a topic on Twitter in recent days.
