The redeeming feature of an otherwise disastrous affair
The Brittany Higgins saga has never been able to shake its original flawed arrival. It started in the media and was destined to stay there. The only thing that has changed is the cast of characters, the scalps, and the rising costs to us.
The late US Supreme Court judge Antonin Scalia once described an ill-conceived legal precedent as akin to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried”. The Brittany Higgins-Bruce Lehrmann saga is the same. It will not go away.
What started out as a potential short memoir for Higgins and Penguin Random House would now, if some deluded soul wrote it, be a six-part series of books, each as long as Dostoevsky’s Crime and Punishment and just as maddening to read. That said, like the Russian tome, there is one important reward at the end – the promise of a new, more enlightened story.
Before the reward – if you can bear it – a little more of the morass.
Spare a thought for Michael Lee, the very patient and proper Federal Court judge who is judiciously working his way through the morass of evidence, from credible to macabre claims, sifting through the twisted motivations of some witnesses, trying to unravel bedevilled inconsistencies – and applying the law to this blockbuster defamation case called Lehrmann v Ten/Lisa Wilkinson.
No one could have predicted this week’s turn of events. From the start, Lee has been guided by the noble sentiment that justice must be thorough and open to be fair. So, the judge allowed Ten to reopen the case this week, meaning former Seven employee Taylor Auerbach inserted himself into the latest instalment of this legal psycho drama with explosive claims against his former employer and Lehrmann.
Lee was meant to deliver his judgment on Thursday morning. Instead, more than 26,000 people tuned in to watch the latest unravelling legal drama on the court’s YouTube channel that afternoon. Not bad numbers for a court streaming service – probably a bigger and more attentive audience than many ABC programs attract.
When Auerbach gave evidence, the court heard about exotic “massages”, prostitutes, drugs and using a corporate credit card for some or all of this. They heard evidence that Auerbach consumed 30 drinks a day, sent a contrite resignation email to Seven executive producer Mark Llewellyn after his bender and that Lehrmann provided material to Seven for the Spotlight interview that aired in May last year.
The grisly golf video revealed by The Australian on Wednesday, where Auerbach recorded himself smashing Seven producer Steve Jackson’s golf clubs, was played in court that afternoon. When Auerbach struggles to break one of the clubs in the video, Justice Lee said words to the effect “the shorter the iron, the more difficult it is”.
What the judge will make of this week’s legal mayhem is anyone’s guess. Plenty of lawyers are asking: has Ten just blown itself up by having this case reopened? Much like the cross-claim over costs between Wilkinson and Ten that aired dirty laundry that no media company should want in the public domain, here, again, potentially unsavoury secrets have been revealed.
Much of the material from the criminal trial that Ten, Wilkinson and Higgins wanted to remain secret is now in the public domain, including text messages between Higgins and then boyfriend, now fiance, David Sharaz, and between Higgins and a previous ex-boyfriend. Other material, including a master chronology, has been revealed because Ten wanted the case reopened.
Lee hinted late on Thursday that the tonne of new evidence tendered this week could not be unseen. That was always the danger when Ten ran a truth defence. It could not control what witnesses might say and how credible or incredible their evidence would be. The judge must consider Auerbach’s at times erratic and inconsistent evidence in light of his grudge against an employer that did not renew his contract.
This latest drop of thousands of pages of new evidence may well impact Lee’s evaluation of Higgins’s evidence to him last year and Ten’s truth defence.
And then there’s Lehrmann’s credibility. Lee may decide that he already knew that Lehrmann gave some poor evidence in the witness box or the judge may mark Lehrmann down further, with consequences for any damages that may have been awarded.
God help Justice Lee. He’s surely not the only one fed up with this mess. Whatever the final outcome, whenever that might be, nothing in Lee’s decision will alter why this scandal turned into a real-life version of a bad TV melodrama, with even worse spin-offs featuring new protagonists harbouring their own motivations for seeking their time in the sun. This is not quality drama like Law & Order.
And inevitably, large portions of the costs are billed to us – the poor schmuck taxpayers.
After we sift through Lee’s eventual and lengthy judgment, and its implications for the key players and for the community at large, we should never lose sight of the reason a rape allegation became a radioactive disaster for so many people.
One fateful and stupid decision turned what might have been a sad and distressing but confined and semi-private criminal matter into a major media and political circus. That circus became a series of cage-fights, culminating this week in a legal freak show.
One immature decision turned private pain into a public disaster damaging many lives. Higgins’s decision to take an allegation of rape to the media and to politicians before she took it to the police was the first explosion that set off a series of others, with more unexploded media, political and legal ordnances probably still to go off.
The Higgins saga has never been able to shake its original flawed arrival. The scandal that started in the media was destined to stay there. The only thing that has changed is the cast of characters, the scalps, and the rising costs to us. Higgins and her supporters were never going to be able to control the unfolding drama to suit her version of events.
The sad thing is it didn’t have to come to this. It could have all been so different. If Higgins had gone to the police first and followed the usual criminal processes of charge, committal and prosecution, this whole matter may have been settled long ago, according to proper process, a fair trial, a jury decision, with infinitely less pain to fewer people all round.
After all, the criminal justice system has evolved over centuries to establish rules and processes about contempt and sub judice that preserve the privacy of complainants, the presumption of innocence for defendants, and orderly justice for all.
Instead, Higgins and Sharaz, impatient for public attention and political impact, thought they had a better way than the fusty old common law. They went to Lisa Wilkinson, and Sam Maiden, insisting on a media splash before even making a formal complaint to police.
To make disaster even more certain, they went to Katy Gallagher and solicited a four-ring political circus. Higgins had written down chapter outlines for her potential book before making that formal complaint to police.
The hare-brained radicals of the #MeToo movement will justify this mess with the usual Marxist slogans – “the system is broken”, “you can’t make an omelette without breaking a few eggs”. Even they should contemplate the disaster strewn in the wake of Higgins’s decision to go to the media and politicians before the police.
Let’s count some of them.
Police raised concerns about the lack of strong evidence in the now famous Moller Report, exposed by this newspaper in December 2022.
The criminal trial in 2022 was aborted when a juror took material into the jury room. Why would anyone expect a jury to be free from the enveloping, swirling, at times wild media forces that engulfed Higgins’s story? A jury is made up of human beings, after all.
ACT chief prosecutor Shane Drumgold claimed there was political pressure on the prosecution. The Public Board of Inquiry that held hearings in May 2023 found no evidence of that, but Walter Sofronoff found plenty of evidence of misbehaviour in the prosecution of Lehrmann by Drumgold.
Drumgold then tried to have that report declared null and void, scoring a Pyrrhic victory in court this year. The most damning findings stand. The ACT chief prosecutor was forced to resign.
Would Drumgold have behaved in the way he did in a less febrile atmosphere? This is not to condone his behaviour but perhaps it does explain it somewhat. Would Higgins have done what she did except for the wild #MeToo forces?
Lisa Wilkinson also copped criticism, but perhaps the lure of the crowd in front of Parliament House and of the Logies does explain why she took actions she might not take again. The revelation that her disgraceful Logies speech was given on the advice of, and effectively at the direction of, Network Ten and its chief lawyer, Tasha Smithies, certainly provides some measure of exculpation for Wilkinson.
Simultaneously, one wonders how, to borrow from Justice Lee, any lawyer could ever have given such advice. No doubt the appropriate legal authorities are asking whether Smithies simply preferred Ten’s commercial interests over the need for a fair trial, and if so whether she will become yet another victim of this ever-spreading mess.
Leon Zwier’s arrangements with Brittany Higgins are not public so perhaps they are nobly pro bono. But even so, telling Ten that if Wilkinson hired leading silk Sue Chrysanthou SC, Higgins would refuse to co-operate with Ten’s defence of the matter strikes many lawyers as distinctly inappropriate and will no doubt be remembered. Along with his suggestions, caught on tape, to Sharaz in the Park Hyatt lobby bar as to how Higgins should answer tough questions during her cross examination in the defamation trial.
Some players can never be forgiven or forgotten. Scott Morrison trashed the presumption of innocence and the rule of law when he used parliamentary privilege to apologise to Higgins. A prime minister’s job is to defend the rule of law, no matter the baying crowd surrounding him.
The Albanese government’s dubious payment to Higgins remains a colossal legal stinker, awaiting proper investigation by the new national corruption watchdog that Albanese and all those promenading teals told us we needed.
Two women behaved honourably and properly throughout – Linda Reynolds and Fiona Brown. They are the only two women who gave Higgins the right advice – go to the police. Reynolds was grossly defamed by Drumgold and hounded by the mean girls of the Senate, Gallagher and Penny Wong. She at least got a public apology and damages from Drumgold and the ACT government (although not, shamefully, from Wong or Gallagher). Brown was driven to the edge of suicide and despite her impeccable conduct remains damaged and uncompensated.
Kimberley Kitching also behaved honourably, and we can only wonder what part the bloodlust for political wins from the Higgins allegation played in her tragic death.
The ACT police were also found by the Sofronoff inquiry to have behaved with complete propriety – fearlessly and professionally investigating without bias or prejudice. However, some of these honourable men and women have left the force, demoralised and psychologically damaged by this scandal.
Continuing the list of the few characters whose behaviour has demonstrated the highest standards is Steve Whybrow SC. He defended Lehrmann pro bono. His sterling legal work contributed to the ending of a prosecution, despite a chief prosecutor who was exposed as behaving dishonestly. But his life in recent years has been consumed by this debacle.
So many people have suffered needlessly. Steve Jackson, the Channel 7 producer who worked with Auberbach, has been dragged through the media.
The Federal Court heard claims this week that Auberbach was the source of the media leaks resulting in Jackson losing a new job with the NSW Police Commissioner because the NSW Police said they didn’t want the distraction. How unfair is that?
Now to the reward. All the misery and personal destruction wrought by the Higgins/Sharaz media circus has one important silver lining.
The sparks generated by this roiling scandal have led to some judges in NSW speaking out about a broader scandal of a legal system gone fundamentally wrong. We know now that in the wake of the #MeToo movement, prosecutors all over the country appear to be bringing completely meritless prosecutions for sexual assault.
Bringing prosecutions in cases with little evidence damage not only the accused but also the courts, lawyers and police who must deal with them. Importantly, they may also damage complainants, and certainly diminish respect for the criminal justice system. Now that this shocking trend has been exposed we can do something about it. A redeeming feature of an otherwise disastrous affair.
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