Naturally Twitter exploded yesterday after the news that the trial of Brittany Higgins’ alleged rapist, due to commence next week, has been vacated and will be put off for some months. “Precious lawyers,” I keep reading, “protecting their exclusive turf and treating the rest of us like children.”
There is, I agree, a reasonable conversation to be had about the utility of the sub judice contempt rule in the age of social media. In the meantime, the law is still the law. Since we’re all so excitable about the rule of law, how about we fucking comply with it?
Chief Justice Lucy McCallum of the ACT Supreme Court had every right and reason to do what she did, in the interests not just of the accused, Bruce Lehrmann, but all of us. So easily lost in the maelstrom of Me Too is the slightly subtle point that believing survivors is not the same thing as discarding the presumption of innocence.
The sub judice rule is one of the first lessons taught to budding journalists. As McCallum said: “Extensive media reporting of allegations of criminal conduct is not a mischief in itself. On the contrary, it is appropriate to recognise that the media play an important role… What is a potential mischief is the capacity for media reporting of such issues to spread in such a way as 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.”
For the media, it can be a tricky balance, but the basic principle is to not prejudge guilt; that’s why they’re usually so assiduous about sticking “alleged” in front of everything. As the trial gets closer, the sensitivity should increase. A week out from trial, they should be publishing nothing about the case, the complainant or the accused except the bare facts of the criminal process. When the trial begins, they can report it as it unfolds.
In that context, what happened is utterly baffling. McCallum recorded in her judgment that Lisa Wilkinson, who had interviewed Higgins on Ten’s The Project when she first revealed her allegation, met with the Crown prosecutor on June 15 because she was going to be called as a witness.
Wilkinson specifically raised with the prosecutor the fact that she was up for a Logie award the following week and had prepared a speech. The prosecutor told her they couldn’t tell her what she could or couldn’t say, but warned her that the defence could “reinstitute a stay application [to stop the trial going ahead] in the event of publicity”.
McCallum went on: “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.”
The judge noted comments made by radio hosts Jonesy and Amanda the following morning, in which they clearly “assumed the guilt of the accused”. Higgins posted on social media repeating some of Wilkinson’s remarks; the circumstances “amounted to Ms Wilkinson endorsing the credibility of the complainant who, in turn, celebrated Ms Wilkinson’s endorsement of the complainant’s credibility”.
As McCallum concluded: “The prejudice of such representations so widely reported so close to the date of empanelment of the jury cannot be overstated. The trial of the allegation against the accused has occurred, not in [the court] but in the media.”
She’s right: the “alleged” has been lost along the way, rendering Lehrmann’s trial unsafe. Whether he is criminally guilty or not, which is for the jury to decide, his entitlement to a fair trial is in all our interests.
What is so deeply frustrating about this situation is how easily it could have been avoided. Lehrmann’s lawyers had had a go earlier this year at getting his trial permanently or temporarily stayed because of the intense publicity surrounding the case, and McCallum had refused it. She was alive to the risk, but concluded that it could be managed. Yesterday she said in open court that she had placed way too much trust in the media to play its part responsibly.
This debacle is not the fault of social media, where of course Lehrmann has been and will continue to be tried endlessly. That can be ignored. The platform afforded a major media personality, giving a speech at the industry’s main awards ceremony, cannot. Nor can the broadcast power of breakfast radio.
All the media had to do in the final weeks before the trial was shut the fuck up about the case. Some of them chose not to. The result is a disaster, for Higgins more than anyone else. I have inadequate words to express my sympathy to her.
Everyone needs to go back to journalism school and relearn their first lesson. Please let’s not find ourselves here again.
Excellent comments Mr Bradley – ‘all the media had to do …was shut the f-u-c-k up about the case’.
Problem is, far too many ‘journalists’ have reputations invested in this case, including some who write for Crikey – Schultz, Cannold and Keane have all dispensed with the word ‘alleged’ in stories they have written on this matter. Their articles go to the point McCallum makes about ‘obliterating the line between an allegation and a finding of guilt’.
One wonders why Wilkinson would so blatantly ignore judicial warnings regarding this case?
Any of deliberate, incompetent or self-centred. Definitely no thought for Brittany Higgins.
Beautifully put response, Diana, to Anodyne’s essential question.
……. or for Bruce Lehrmann.
Ditto for Kate Thornton, just that ‘partisan’ needs to be tacked on to the list.
Goodness, when are you all going to realise that the single most critical purpose of the entire #MeToo movement has been the advancement of the careers of a tiny number of white, privileged, wealthy political/media figures, via the medium of public virtue signalling disguised as self-appointed ‘advocacy’ on nominal behalf of sexual abuse and crime victims?!?!
How many books are in the offing, re: the last few years? One will of course but and read them all for the purpose of one’s earnest MRA corrective re-education.
#MeMeMeMeMeMeMeh.
I dont think it’s the purpose of the creators nor most supporters, but there are definitely plenty seeking to use MeToo as a vehicle for their own purposes. In particular journos, misandrists and typically left leaning politicians.
Wee bit of tongue-in-cheek. Less each day, tho. Really, it’s hard to take this sh*t at all seriously now.
Sexual abuse, harassment, crime…yes. As always.
#MeToo? Yeah but nah.
What on earth has this irrelevant, barely intelligible attack on “Me, Too” got to do with Lisa Wilkinson’s failure to understand what her lawyers told her-though that was unwisely hedged with “we can’t tell you what to say” without, it seems, “but we can tell you what not to say”? The reference to “middle class white women” is not just irrelevant, it is uncomprehending. The same could have been and, indeed, was said about the suffragette movement. The reason in both cases is that such women had a better chance of being heard rather than brutally suppressed in our societies, which were and still are riddled with racism and contempt for working class people, who are too widely thought to have little because they have not tried to better themselves. Not only Lisa Wilkinson should have shut the f- up but good old Jack Robertson should too.
Resist the urge Jack, you know it wont be a productive conversation based on past torturous attempts.
I should not assume that good old Jack understands what the suffragette and “Me, Too” movements have in common. Women should have just as much political say as men. The Suffragette movement called for women to have the vote. Despite their being white, middle class women largely but not entirely-black women and working class women participated too-women now have a vote and all the other political rights that men had. The “Me Too” movement is a movement to show solidarity of women in protesting against the way that powerful men take advantage of their position to sexually assault or sexually harass women, who too often felt they couldn’t risk open resistance, because they would simply lose some advantage and nothing adverse would happen to the man involved. Increasingly, the practice of men taking advantage of their relative power to pressure or sexually assault women with less power is being challenged and men forced to question how they could possibly think they could be entitled to not respect women as equal persons but treat them as sex objects. The goal of the “Me Too” movement does not cover all that is involved in having all but relative few men and women respecting each other as equal persons but it is a positive step.
Good points. Thanks for sharing.
Like the guy who keeps popping up to make his case for nuclear power with bizarre and convoluted connections to the subject at hand, Jack is gonna do the same with his fierce hatred for the Me Too movement.
Of course, no social movement, no matter how just its goals might be, proceeds without some involved not understanding or having serious misconceptions about what is just. Only a dim or dishonest person takes these extremes or missteps as a reason to oppose all of a movement with just aims. Mind you, good old Jack’s reaction to criticism is to get as many mates as he can to make a negative response, as if this mattered to anyone but Jack and friends.
My consistent point for the entirety of #MeToo in Oz has been that its casual disregard of due process is in fact a catastrophe for feminism, progressive politics and especially genuinely powerless, voiceless victims of sexual abuse, harassment and crime.
Nothing that is now transpiring with the Higgins delays, the general paralysis/exhaustion of reform advance, and the orgy of self-interested narcissism from media self-advancers like Wilkinson…is proving my scepticism anything but vindicated.
How many book deals by white, wealthy, privileged information class opportunists are now seeking to make a sh*t-ton of money from #MeToo, Ian…regardless of how much it might well f**k up any chance of genuine justice in the Higgins’ case, and a return to a broader focus on the substantive issues of abuse/crime outside their own privileged, rarified ‘bubble’ class?
No-one is writing a book on indigenous abuse, or aged sector abuse, or CALD/socioeconomic cohort abuse, are they ? Because…genuinely abused, voiceless women (and FTM men) in those cohorts… don’t buy $49.90 books, or go to writers’ festivals, or watch The Insiders, or read The Saturday Paper, do they.
Me? I’m done with being nice on this issue. I have nothing to prove to you or anyone else. I’m sick of being abused by soft pap prog tyre-kickers on b/s, and deeply offensive grounds of ‘misogyny’, ‘MRA’ hood, ‘pale male stale’ meh meh meh. I was right on the extrajudicial disaster this b/s movement is for victims.
Your strident, hectoring, arrogant, short-sighted ilk…were wrong. Wrong wrong wrong wrong wrong. You don’t jettison the presumption of innocence. You don’t throw out due process. You don’t bring out the noose. If you truly care about justice for the powerless.
The lynch mob f**ked it up. You always do.
So…go f**k yourself, Ian. With the greatest respect.
Well said
Oh, dear. Too many baseless allegations to worry about. But then court experience wonderfully transforms what people say into something else that can easily be attacked. Please follow your own advice, dear old Jack.
Ditto Well Said
The modern disease – when too much is not enough.
“Your strident, hectoring, arrogant, short sighted”. We’re you glancing at a mirror with this, Jack? Presumption of innocence and due process all have their place, Jack, but you shouldn’t be surprised that these features of British justice are the answer to everything, especially indigenous abuse and aged care abuse. Nor should you assume that nothing is written or publicly discussed about these problems, especially for the reason that the victims of these forms of abuse do not a book market make. The answer to these problems is definitely not simply the justice system or revealing that they occur. I hope this is not too strident or hectoring for you, Jack.
There are quite a few ‘mates’ I get down voted all the time too! Misogyny is alive and well. Watch!
Jack,
My subs is finishing up shortly and I just wanted to say how much I valued your differential assessment contributions.
All the best, and look after yourself. You sound like someone who actually gives a sh*t about social justice rather than partisan politics.
Regards
Curious
One of the first lessons I learnt in he early days of my cadetship was: If in doubt, leave it out.” It seems Ms Wilkinson either did not get that advice or chose to ignore it. Maybe she should be made to pay the cost of the delay. Paul.
Women’s rights are the hottest topic in Australian society right now. Do you really think journos (of all political persuasions) can resist the urge to cash in on it?
Maybe a journalist will call to ask her, and then print what she says, or else write “Lisa Wilkinson was asked to comment for this story but had not replied by the time of publication”.
Is that too much to expect of journalism?
Yep.
I’m generally very much against journalists being hounded by the law for their work, but Lisa Wilkinson’s speech at the Logies was not journalism, it was a reckless self-indulgent interference made in full knowledge of the risks because she had been warned. A charge of contempt of court looks wholly justified, to reflect the damage Wilkinson has done to all concerned, and to Higgins most of all.
And a formal complaint to the AJA?
Well put. And may that well deserved contempt charge – sustained if laid, one must hope – be a salutary example for the self-obsessed media and their unprofessional ‘personalities’ who, though dolts they may be, assume they’re a law unto themselves.
She ran it by the DPP and was told it was not acceptable so mens rea is clear.
I wasn’t aware that everything a journalist said was ‘ journalism’. Lisa’s speech was an acceptance speech for a Logie award where she gave some background as to how it all came about. From what I have read, she was refused advice about the contents. I wonder how many people even watched the show! I certainly didn’t.
Wilkinson seems to have gone full FitzSimons on this. Personally I blame awards shows, possibly the most hideous invention since ichneumonidae wasps.
For an experienced and capable journalist, Lisa Wilkinson was apparently inexplicably ignorant and arrogant. And for what? A meaningless award night. If Wilkinson can be so cavalier with the power she wields, what do other journalists understand about subjudice?
The judge said “Notwithstanding that clear and appropriate warning [from the Crown Prosecutor no less]” Wilkinson still went full steam ahead. What legal advice, if any, did she receive about her proposed speech? She absolutely deserves to be charged with contempt of court.
Princess Lisa is certainly reaching to win a new Martyr Category in next year’s Logies.