The chair of the public inquiry into the Lehrmann rape trial has lashed coverage by News Corp journalist Samantha Maiden, Channel 7’s Isabelle Mullen and Daily Mail Australia, among others, describing elements of their reporting as “prurient yellow journalism”.
Walter Sofronoff KC made the remarks on Wednesday afternoon during the course of hearing submissions on why he shouldn’t take the extraordinary step of closing the high-profile inquiry to the public.
His ire was aimed at reports by “reputable journalists” which he said had “cherrypicked” or otherwise misrepresented highly defamatory, scurrilous statements about Brittany Higgins contained in evidentiary documents that had been tendered to the inquiry but excluded from the trial for a range of reasons, not least their seriously low probative value.
“To give prominence to a scandalous, unjustified, defamatory and prurient isolated statement on the pretence that it has some independent importance for an understanding of [the inquiry’s direction] is not just low journalism, it does not represent a fair report of the proceedings and it may constitute contempt of this inquiry,” he said.
“It is also a mean and cruel thing to do to somebody. The public interest is not served by the misuse of evidence that I make available for the purpose [of the inquiry].”
Media lawyer Justin Quill, appearing for News Corp, Nine, Seven Network, ABC and Daily Mail Australia, told the inquiry it should proceed with public hearings on the footing there would “be fair reporting” going forward, indicating he would relay the chair’s concerns to his clients.
To this, Sofronoff said the reports in question plainly did not lend themselves to meeting the overriding aim of the inquiry, which is to inform the community of the truth about the way various public officials conducted themselves in the Lehrmann matter.
“How does it assist public understanding to publish a headline like: ‘Multiple occasions: explosive sex claim in secret Higgins dossier’?” he asked, likening it to the quality of a supermarket gossip magazine.
“To publish the stories, as [some of your clients] did, I think goes so, so far — actually, it staggered me.”
Sofronoff then described how his staff, including counsel assisting Erin Longbottom KC, had been freely engaging with reporters to foster working relationships conducive to the success of the inquiry.
“What’s been shown is that there are people who will take advantage of access to what would otherwise be highly confidential material and misuse it,” he said.
“I’ll tell you: it’s distressing to think that that kind of free engagement with journalists whom I’ve trusted has resulted in this.”
As Crikey reported on Wednesday, leading criminal barrister Mark Tedeschi KC, who is representing ACT Director of Public Prosecutions Shane Drumgold SC at the inquiry, had independently raised his own concerns over the coverage earlier that morning, pointing out the defamatory reports were based on no more than “office scuttlebutt”.
In the afternoon, he told the inquiry that the attitude to allegations of sexual assault exhibited by the media organisations belonged to the “stone age”.
“If they thought about it for even a few seconds, they would realise that publication of such information will discourage future complainants in sex cases from coming forward,” he said.
“This is an egregious infringement of both fair reporting and standards of good journalism.”
Describing the offending reports as “hearsay upon hearsay”, Lisa Wilkinson’s barrister Sue Chrysanthou SC told the inquiry a non-publication order, at this point, seemed futile, in light of the extent to which the reports had been “shared and commented upon repeatedly” on social media.
Short of closing the inquiry to the public, Chrysanthou advised the inquiry to make clear that journalists who engaged in such reporting would lose the defence of fair report in any defamation action.
“The only thing that can be done now … is to note that any person who is defamed by those media organisations has a cause of action that’s not protected by fair report,” she said, to which Sofronoff replied: “And what’s more, it’s not difficult to track down the person making horrible statements on social media.”
After a short adjournment, Sofronoff determined — “with some trepidation” — the inquiry would remain open to the public for the time being, depending on the conduct of the media, and that he would lift the non-publication order he’d placed that morning because it was inutile.
“Pursuit of the truth in the public eye is very important, but the truth can cost too much and the cost will be borne by people who do not deserve to bear it,” he said.
“Two young people, Ms Higgins and Mr Lehrmann, are at the centre of the matter, but they don’t have to tolerate being defamed or maligned.
“I’ll do nothing today, except ask the media companies that have published the loathsome material to do all that is possible to remove it from the public eye.”
Maiden’s report has since been removed from news.com.au.
Maiden was one of two journalists, the other being TV presenter Lisa Wilkinson, in whom Higgins confided her allegation of rape before the story broke in February 2021.
Lehrmann, for his part, is currently suing Maiden, Wilkinson and the ABC for defamation. He has always maintained his innocence.
Crikey’s coverage of the inquiry has never included the offending material.
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