Fallout over Lisa Wilkinson’s Logies speech sparks delay in Brittany Higgins rape trial
The Project host Lisa Wilkinson was given warning days before the Logies about the risk of speaking publicly about the Brittany Higgins trial.
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The Project host Lisa Wilkinson was given warning over delivering a speech at the Logies about Brittany Higgins days before she accepted an award for her coverage of the young woman’s sexual assault allegations.
ACT Chief Justice Lucy McCallum vacated the trial dates of Bruce Lehrmann, who is accused of raping Brittany Higgins in March 2019, after his defence team requested a temporary stay in the wake of the speech and surrounding publicity.
Lehrmann has pleaded not guilty.
Justice McCallum said she made the order to delay the trial from starting as planned on Monday, June 27, with “gritted teeth” but was left with no other options.
“Unfortunately, however, the recent publicity (of the speech) does, in my view, change the landscape,’’ she said.
“Because of its immediacy, its intensity and its capacity to obliterate the important distinction between an allegation that remains untested at law.
“For those reasons, regrettably and with gritted teeth, I have concluded that the trial date of 27 June towards which the parties have been carefully steering must be vacated.”
Justice McCallum warned earlier on Tuesday the line between an allegation and the finding of guilt was “completely obliterated” in the speech given by Wilkinson on Sunday night.
“The implicit premise of (Lisa Wilkinson’s speech) is to celebrate the truthfulness of the story she exposed,” she said in the hearing.
Mr Lehrmann has pleaded not guilty and has given a police interview stating he did not have sex with Ms Higgins.
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While handing down her judgement on Tuesday afternoon, Justice McCallum said the award was not unexpected and that Ms Wilkinson had sought advice from the Director of Public Prosecutions Shane Drumgold on June 15 to discuss the evidence that she would give at the trial.
A note of the meeting by the DPP said that at the conclusion of the meeting, Ms Wilkinson was asked if she had any questions.
She then raised that she was nominated for a Logie and didn’t think she would win because it was organised by a rival network.
She then started to read the speech she planned to give but the DPP intervened to stop her and he had no power to approve or provide advice on the speech.
“We are not speech editors,” Mr Drumgold told Ms Wikinson.
“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,” Justice McCallum said.
“Unsurprisingly, the award, and the content of the speech have been the subject of further commentary.”
Justice McCallum is also considering hearing arguments on prohibiting Ms Wilkinson and the complainant Ms Higgins on making any public commentary on the trial.
Lawyers acting for Mr Lehrmann brought the legal application this week in the wake of the Logies speech.
“Your honour, this speech did not need to be made,’’ barrister Steve Whybrow on Tuesday morning.
Slamming elements of the media over the reporting of the speech during the same hearing, Justice McCallum warned the distinction between an allegation and guilt had been “obliterated”.
“What concerns me most about this recent round is that the distinction between an allegation and a finding of guilt has been completely obliterated in the discussion on Sunday and Monday,’’ she said.
“The law of contempt, which has, as its object for protection of the integrity of the court, but which, incidentally, operates to protect freedom of speech and freedom of the press has proved ineffective in this case,’’ she said.
She added the fact that Ms Wilkinson was a witness at the trial was also an issue.
“The present case is different because the author of the impugned remarks will be a key witness in the trial,” she said.
“A central issue in the trial, it is now clear, will be the credibility of the complainant and whether her allegation of sexual assault can be believed.”
Justice McCallum said the case had attracted a level of attention in the media and among prominent Australian personalities that, “while not unprecedented, even within my own judicial experience, is certainly extreme.”
“Extensive media reporting of allegations of criminal conduct is not a mischief of itself,’’ she said.
“On the contrary, it is appropriate to recognise that the media plays an important role in drawing attention to allegations of criminal or other misconduct and any shortcomings in the treatment of such allegations.”
However, she said a potential mischief was the capacity of media reporting 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,’’ Justice McCallum said.
“It is trite but apparently requires restatement at this point in this case, that the constitutional process for determining whether a person is guilty or not guilty of a serious criminal offence is for the allegation to be tested in a trial conducted in open court according to law.
“The overriding principle, one that is fundamental to the very notion of a criminal trial and so cannot be dispensed with, is the requirement that the trial be fair.”
Justice McCallum warned earlier on Tuesday Ms Higgins’ allegation had also been conflated publicly with the work of former Australian of the Year Grace Tame, despite the fact that in the latter example a man had been convicted.
“Grace Tame was talking about her experience after the man had been convicted and served a sentence of imprisonment,” she said.
“(Tame’s) important contribution to the legal landscape was to say ‘the jury knows what he did, the public knows what he did, but I can’t talk about it because of the law that prohibits me outing myself.
“Miss Higgins is treated as being in the same category. And she’s not,’’ Justice McCallum said.
“At the moment, she is not in that category. That’s what really troubles me about the last round.”
On Tuesday, the ACT Director of Public Prosecutions Shane Drumgold said Wilkinson’s Logies speech was a “regurgitation” of emotion, making the point that the television host had said similar things previously.
“It’s difficult, it’s all undesirable, it’s all unsavoury, but the most unsavoury is that (a comment made on radio show Jonesy and Amanda during coverage of Ms Wilkinson’s speech) is a direct statement of guilt that they have extrapolated in the context from the opinion by Miss Wilkinson,’’ Mr Drumgold said today.
A previous stay application was dismissed by the Supreme Court.
Justice McCallum said during the hearing that, in summary, Ms Wilkinson’s speech amounted to saying: “Not only do I believe her, but she’s brave and extraordinary and she’s the most important thing that’s ever happened to me and I’m proud of bringing forward her allegation.”
“We know that the accused has given a recorded interview in which he denies any sexual activity took place,’’ Justice McCallum said.
She said it could be anticipated that the defence would explore the complainant’s credibility as the central issue in the case.
“And it can further be anticipated, because it happens a lot in the experience of the courts, that the line and cross examination will be about some other motive,’’ she said.
“Fame, or publicity, or money, or you backed yourself into a corner that you couldn’t get out of, or whatever it is, there’ll be an exploration of alternative motives.”
During Tuesday morning’s hearing, Ms McCallum said she had “made a mistake” in trusting the law of contempt and the media to do the right thing.
“Isn’t that a safer course, to defer the trial?” Justice McCallum asked.
Mr Whybrow claimed to the court more than 800,000 searches had been made in relation to Ms Wilkinson’s speech on Monday alone.
He also noted reactions on Twitter and Instagram, as well as a radio program and other news outlets, as evidence of intense attention in the lead-up to the start of the trial.
He said his client did not want to delay proceedings.
“He (Lehrmann) wants to get it on, but he wants a fair trial,” Mr Whybrow said.
Earlier this year, Justice McCallum delivered a “blunt” warning the trial could be postponed or not proceed at all.
“A man has been accused of a very serious offence, it is an offence that can only be tried with a jury,” she said in the ACT Supreme Court.
“The laws about contempt are well known in this country.
“Statements made before a criminal trial that might interfere with the administration of justice and, in particular, the ability of an accused man to have a fair trial risk falling in the classification of contempt.”
She said she “strongly” urged people to be careful.
“If I could put it in blunter terms, the more people keep talking about this case the greater the risk the prosecution will be stayed,” she said.
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