Lawyers who have spoken to The Australian recall the 1987 case where the NSW Court of Appeal found then premier Neville Wran guilty of interfering with the administration of justice when he made a comment about the decision by the same court to grant a new trial of his close friend, Lionel Murphy.
Consider the facts in this case. Wran made this off-the-cuff remark: “I have a deep conviction that Mr Justice Murphy is innocent of any wrongdoing.” Wran’s unplanned remark was in response to a journalist’s question during a press conference in a corridor held to launch a trade fair. Giving oral evidence, Wran said he had no conscious intention to interfere with justice, only to defend his close friend. Wran told the court that had he remained silent it would have appeared as if he were distancing himself from his best friend. Giving evidence, Wran said he wasn’t thinking about whether a comment would interfere with a fair trial, “and when I think about it now, what I said … would have had as much impact upon … a fair trial as a snowflake in a furnace”.
The court disagreed. It didn’t matter that Wran made an off-the-cuff remark. It didn’t matter that Wran was speaking about his belief that Murphy was innocent: statements as to innocence can equally fall within the prohibition as statements about guilt. It didn’t matter that Wran had no intention to interfere with a fair trial.
Finding Wran guilty, the court said: “We have no doubt that Mr Wran’s making of the statement was reckless as to what its effect might be upon the due administration of justice in relation to (Murphy’s) new trial.” Fining him $25,000, the court said it would deter others. Nationwide News was found guilty of the same offence for publishing Wran’s comments in The Daily Telegraph, and was fined $200,000.
Fast-forward to 2022. Last week, ACT Supreme Court Justice Lucy McCallum said this about Lisa Wilkinson’s comments at the Logies a few days earlier: “The implicit premise of (Lisa Wilkinson’s speech) is to celebrate the truthfulness of the story she exposed.” The judge said “what concerns me the most … is that the distinction between an allegation and a finding of guilt has been completely obliterated”.
Following those damning comments by McCallum, the ACT DPP must be considering whether to lay charges against Wilkinson under section 714 of the ACT’s Criminal Code.
That section says it is a criminal offence if a person “publishes something that could cause a miscarriage of justice in a legal proceeding”. If done intentionally, the maximum penalty is imprisonment for 10 years or a fine of $160,000, or both. If the person does so recklessly, the maximum penalty is $112,000 and a seven-year jail term, or both.
Senior lawyers have told The Australian that what Wilkinson did is arguably much worse than what Wran did. Consider and contrast the evidence about Wilkinson and Wran. First, Wilkinson’s comments were planned. She read from a piece of paper. Second, prior to the Logies, she told ACT DPP Shane Drumgold that any speech she gave would be broadcast by Channel 9, the rival network that carried the Logies event. In other words, Wilkinson knew her comments would be published widely across the country. Third, Wilkinson knew the dangers of interfering with the administration of justice; she warned others by tweeting about the danger on August 6, 2021. Fourth, Wilkinson spoke with Drumgold in advance about her possible speech, with Drumgold warning her but refusing to act as a “speech editor”. Fifth, it is not unreasonable to surmise Wilkinson had an obvious interest in securing a conviction against Bruce Lehrmann, the man accused of rape by Brittany Higgins.
A guilty verdict would vindicate Wilkinson’s work. A not guilty verdict would raise questions as to why a man’s reputation and life has been wrecked, and whether Higgins’s version of the boozy night that ended in a minister’s office was false. Remember what McCallum said: “The implicit premise of (Wilkinson’s speech) was to celebrate the truthfulness of the story she exposed.”
Under section 714, the hurdle is whether something “could” cause a miscarriage of justice. Not whether it would. The section alludes to the possibility, not probability, of something causing a miscarriage of justice.
Undertakings given by Wilkinson and Network 10 late last week promising to refrain from further commentary of the case are a distraction. They are not the end of the matter. It would be an odd state of affairs, to say the least, if a person can avoid charges for alleged wrongdoing that has happened by promising to obey the law in future. Every citizen implicitly agrees to abide by the law every single day, without the need for undertakings being given to a DPP or a court.
Given that the DPP’s earlier conversation with Wilkinson about her Logies speech makes it possible that he would be a witness in any trial of Wilkinson, the appropriate course is for him to delegate his prosecutorial powers in this matter to a member of staff at his office. That way, there can be independent consideration of whether criminal proceedings should be instituted against Wilkinson. Of course, to avoid yet another media circus prejudicing Lehrmann’s trial, any prosecution of Wilkinson will have to follow the conclusion of that rape trial.
If Wilkinson is not charged, it begs the question of whether there is a separate standard for a woke princess? Would a conservative journalist receive the same treatment from the ACT DPP?
Trial by media of alleged sexual assault cases has become open slather in the past few years, pursued by those who think their cause is above the presumption of innocence. Media witch hunts, relying on the scantest of evidence, have ruined lives.
There is a sure-fire way to stop this damaging zealotry. Prosecute those who interfere with the administration of justice. That will force the media vigilantes to pull their heads in. The rule of law means those laws that protect a fair trial apply equally whether you are a celebrity, a politician or an ordinary citizen.
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Understandably, many lawyers are quietly expecting charges to be laid against Lisa Wilkinson, star of Network 10’s The Project. Senior silks well versed in the finer detail of laws that prohibit a person from interfering with the administration of justice are asking this: If Wilkinson is not prosecuted, what more does a person need to do to attract the attention of the authorities entrusted to ensure the fair trial of a defendant?