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The case of Brittany Higgins’ sexual abuse allegations has been prematurely opined about in the media, muddying the waters as the court attempts to objectively seek the truth about what really happened and mete out appropriate justice.

A 21^st Century Snitch Hunt

In the Middle Ages, if a woman was accused of being a witch then they were thrown into the river. If they happened to float then they were guilty, but if they drowned then they were deemed to be innocent. While we may scoff at the superstition, we’re starting to see the same kind of usurpation of justice today. Indeed, judicially, it’s like we’re living in the ‘upside-down’ world of the TV show Stranger Things.

Just take, for example, the sad and sorry story of Bruce Lehrmann who is accused of sexually assaulting Brittany Higgins. The foundation principle of law is that a person is innocent until proven guilty. But in 21^st century Australia, that is now the other way around.

Thanks to some in the media, most of the country not only believe that Mr. Lehrmann is guilty, but Ms Higgins has also been awarded a lucrative $250,000 book deal. A deal, that according to The Australian, “was brokered, in part, by Sydney Morning Herald journalist Peter FitzSimons, who is married to Wilkinson”.

And this is all before the case has even gone to court!

Significantly, the book detailing Higgin’s allegations of sexual assault went on sale two weeks ago. And while the publisher, Harper Collins, has ceased further supply of the title, The Australian is reporting that it is still readily available from all leading bookstores such as Angus and Robertson, Booktopia and Big W.

Findings of Chief ACT Justice Lucy McCallum

What follows is a summary of ACT Chief  Justice Lucy McCallum’s reasoning as to why the trial should be vacated (delayed) from proceeding on schedule. And it’s a damning indictment on the role that the media in particular have to play in undermining our system of justice:

First, the original offence is alleged to have taken place in the early hours of 23 March 2019. Ms. Higgins made a statement to police on 1 April 2019 but then “informed police that, in light of her workplace demands, she did not wish to proceed further with the complaint”. This was because of the announcement of a federal election and Higgins considered her duties to her employer to be “in a delicate period leading up to the federal election”.

Second, almost two years later, Higgins decided that she wanted to proceed with the complaint, as well as go public with her allegation of sexual assault and, separately, “with her concerns as to the manner in which her initial complaint had been handled within Parliament House.

Third, on 27 January 2021 Higgins contacts the well-known journalist Lisa Wilkinson. Higgins then does a recorded interview with Wilkinson on 2 February 2021 as a basis for a future program, which went to air on 15 February 2021. In between those two dates though, on 4 February 2021, Higgins “contacted the police to communicate her resumed interest in proceeding with a criminal complaint”.

Fourth, Justice McCallum notes that: “If those events occurred in reverse order, it is possible that the commencement of criminal proceedings would have intervened, with the result that the interview could not have been published without attracting the risk of contempt proceedings against the journalists”.

Fifth, 19 June 2022 the Logie Awards occur in which Wilkinson receives a silver Logie for her story on Higgins. Justice McCallum records that, “This was not entirely unexpected by her, nor did the award come at a time when she was unaware of the pending trail of the accused. Indeed, Ms Wilkinson mat be taken to be aware that she is to be called as a Crown witness in the trial”.

Sixth, even though Wilkinson was given a “clear and appropriate warning” of publicly commenting on the case, “Ms Wilkinson gave a speech in which she openly referred to and praised the complainant in the present trial. Unsurprisingly, the award and the content of the speech have been the subject of extensive further commentary”.

Seventh, one notorious example of the previous point is that of the popular morning radio program “Jonesy and Amanda”. Both presenters assert that the accused is guilty of rape. For instance, ‘Amanda’ is quoted as saying, “Brittany had—the back story here, I’m sure you remember—was raped in Parliament House”. Likewise, ‘Jonesy’ is quoted as saying, “The whole story is dreadful…just the fact that she had to have a meeting in the very room that she was raped with her superiors and then her career was virtually finished”.

Eighth, Justice McCallum concludes that, “What can be known is that, somewhere in the debate, the distinction between an untested allegation and the fact of guilt has been lost.” One of the main reasons for this is because, “Ms Wilkinson’s status as a respected journalist is such as to lend credence to the representation of the complainant as a woman of courage whose story must be believed.”

Ninth, Justice McCallum goes on to make the damning assessment: “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 constitutionally established forum in which it must, as a matter of law, but in the media. The law of contempt, which has as its object the 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. The public at large has been given to believe that guilt is established. The importance of the rule of law has been set at nil.”

Tenth, is the following crucial aspect that has been almost universally overlooked by the mainstream media. “The irony in all of this is that the important debate as to whether there are shortcomings in the way in which the courts are able to deliver justice in sexual assault cases, to complainants and accused persons alike, has evolved into a form of discussion which, at this moment in time, is the single biggest impediment to achieving just that.”

The Response of Channel 10

Ms Wilkinson’s employer, Channel 10, has now gone on the attack and warned of legal action against anyone’s media coverage that is critical of her actions:

‘This reporting is now causing significant harm and we ask these organisations to cease this harassment to allow Lisa the best opportunity to give her evidence in court and to enable the trial to go ahead in a fair and timely manner.’ 

‘We are closely monitoring all coverage of this issue and Lisa and Network 10 reserve their rights in respect of any future defamation claims.’

Mainstream Media Hypocrisy

In response to the above finding, Ugur Nedim of Sydney Criminal Lawyers has written, this is “mainstream media hypocrisy at its best”. Mr Nedim goes on to further state:

This request to ‘cease harassment’ and ‘allow Lisa the best opportunity to give her evidence in court’ comes from a broadcaster that has been getting away for years with its employees physically pursuing people, including camping outside courthouses and even going to their workplaces and homes, and routinely publishing reports that blatantly misrepresent and          sensationalise allegations — whether tested or not — and result in the destruction of the careers and reputations of many with impunity.

It is one of the organisations at the forefront of calls to weaken defamation laws and thereby expand press freedoms, so that media organisations may be less concerned about the   truthfulness and credibility of their stories.

But it seems that when it comes to ‘coverage’ of its own employee, the Channel is suddenly concerned about the impact of reporting and goes so far as to issue a thinly veiled threat to commence defamation proceedings against those who dare speak their views about the presenter’s conduct — conduct that its own recently-engaged barrister publicly said gives rise to a ‘serious possibility’ of contempt of court charges being brought.

The broadcaster’s position smacks of not only hypocrisy, but as an attempt to use bullying tactics through its high-priced lawyer and public threats in order to silence adverse            commentary.

What will happen next to the “woke princess”?

The crime of having been found guilty of contempt of court is incredibly serious. Janet Albrechtsen recently explained in The Australian:

That section [section 714 of ACT’s Criminal Code] 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.

Albrechtsen then went on to conclude:

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.

Albrechtsen makes a very powerful and pertinent point. If Wilkinson is guilty of contempt of court — and I’m not saying she is — then it must be prosecuted to the full extent of the law. Not just because of the current case involving Mr Lehrmann, but as a warning to everyone else in the media to not use their positions of influence to undermine the rule of law. Because as Justice McCallum has stated, in the current circumstances involving Ms Wilkinson, “The importance of the rule of law has been set at nil.”

Photo by Dominic Lorrimer/The Sydney Morning Herald.