Read The Times Australia

Daily Bulletin

Why was the Brittany Higgins trial delayed, and what is 'contempt of court'? A legal expert's view on the Lisa Wilkinson saga

  • Written by: Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South Australia

The judge in the trial of Bruce Lehrmann, the staffer alleged to have raped Brittany Higgins, ruled on Tuesday, “regrettably and with gritted teeth”, that his trial will need to be delayed.

This was because of the media coverage and social media attention that followed Logie Award-winning journalist Lisa Wilkinson’s acceptance speech (she won a Logie for her coverage on The Project of the Brittany Higgins allegations).

In the speech, Wilkinson thanked Higgins for trusting her and The Project team with the story, and for changing the national conversation around allegations of sexual abuse.

Lehrmann’s lawyers successfully argued the speech was a potential “contempt of court”.

Chief Justice Lucy McCallum said:

“What concerns me most about this recent round is that the distinction between an allegation and a finding of guilt has been completely obliterated… The implicit premise of [the speech] is to celebrate the truthfulness of the story she exposed.”

One might have thought the exceptional umbrage taken by the courts against the media’s reporting of the George Pell case might have made the veteran journalist a little more cautious about referring to matters that are either currently or imminently before the courts.

According to news reports, Wilkinson had been warned by ACT Director of Public Prosecutions Shane Drumgold that her speech could delay the trial if it made reference to the case, but he reportedly didn’t want to listen when Wilkinson started to read it to him beforehand, offering that prosecutors “are not speech editors”.

Wilkinson reportedly told him she was not expecting to win, so the speech would not likely be made.

There’s also the complication that the prosecution reportedly plans to call Wilkinson as a witness in the trial.

The prosecution plans to call Wilkinson as a witness in the trial. AAP Image/Regi Varghese

Read more: Cleo Smith interview: does Channel Nine run the risk of being in contempt of court?

What is ‘contempt of court’?

So, what caused the judge to make her ruling to stop the case in its tracks, and list it for trial at a date yet to be determined?

It’s the law designed to ensure all criminal trials are fair and it’s guided by the principles of “contempt of court”.

Contempt of court can arise if any words or actions by the media (or indeed anyone who makes a public statement) are deemed to interfere with the administration of justice, or constitute a disregard for the authority of the court.

The principle of contempt law that pertains to this case is that a jury must decide the guilt or innocence of an accused on the basis of the evidence before them, and not to allow other considerations to taint their deliberations.

This could include commenting publicly on the credibility of a victim’s story, stoking the public’s disdain of an accused by a storm of social media, or calling for a social evil to be tackled. This is referred to as sub judice (“under a judge”) contempt.

Back in February this year, Channel 9 came perilously close to being in contempt of court after airing material that could have been deemed to have a tendency to prejudice the judge’s consideration of a sentence for the man convicted of kidnapping Western Australian four-year-old Cleo Smith.

There need only be evidence the content – whether it be a media article reporting a speech, a social media post, or some other public discussion – could have a tendency to affect the thinking of the jurors in their deliberations. Actual proof that it did, in fact, influence jurors isn’t required. If successfully argued, a trial can be shifted to another jurisdiction, or delayed, or, potentially, aborted permanently.

Lisa Wilkinson won a Logie for her coverage of the Brittany Higgins story. AAP Image/Mick Tsikas

That’s what Lehrmann’s lawyers asked the court to consider. “This speech did not need to be made,” his barrister Steve Whybrow said. He added that his client had no interest in delaying the trial, but he wanted it to be a fair trial.

What’s clear is the speech had the potential to prejudice the imminent trial. Justice McCallum ruled the matter would be better dealt with when the dust has settled on Wilkinson’s acceptance speech, and the social media storm has died down. There would not have been a media lawyer in Australia who would have been surprised by the ruling.

The timing of the Logies was unfortunate. Wilkinson should have been counselled more wisely to generalise her remarks.

Warnings should have been heeded

Parliaments around Australia are facing growing calls to overhaul their contempt of court laws, with many advocates arguing the status quo does not meet public expectations.

But that’s a broader question about freedom of speech. In this instance, freedom of speech was not an issue. It was clear the case could be prejudiced, and the warnings should have been heeded.

No-one has made the allegation in Australia yet that Wilkinson’s remarks are in contempt of court, and only the judge can rule on that if she be so minded.

Whether there are legal ramifications for Wilkinson remains to be seen, but one could have some sympathy for her. Wilkinson had spoken with Drumgold on June 15 to discuss the evidence that she would give at the trial. Drumgold warned her against commenting publicly on Higgins’ case, but clearly not strongly enough.

Given the costly and annoying rescheduling that is now needed, Drumgold is probably regretting he didn’t simply give Wilkinson a firm “no”.

Authors: Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South Australia

Read more https://theconversation.com/why-was-the-brittany-higgins-trial-delayed-and-what-is-contempt-of-court-a-legal-experts-view-on-the-lisa-wilkinson-saga-185585

Business News

Inside the Icon: The BridgeMuseum Officially Opens at the Sydney Harbour Bridge

A bold new way to experience one of Australia’s most recognisable landmarks has arrived, with BridgeClimb Sydney officially opening the all-new BridgeMuseum.  Located inside the Sydney Harbour Brid...

Daily Bulletin - avatar Daily Bulletin

Is Your Brand Showing Up in AI Search? Most Melbourne Brands Aren't.

The New Front Door Nobody Told You About Something changed. Quietly. Without a press release. The way buyers find businesses in Australia has been rewired. Not replaced, rewired. Google isn't dead...

Daily Bulletin - avatar Daily Bulletin

How Australian Businesses Can Measure SEO ROI

SEO can feel vague when you are staring at a dashboard full of numbers that do not clearly connect to revenue. The key is to measure the right signals in the right order, then tie them back to outcome...

Daily Bulletin - avatar Daily Bulletin

How Commercial Roller Shutters Improve Site Security Without Slowing Operations

Security upgrades can be frustrating when they make everyday work harder. A door that takes too long to open, creates bottlenecks at shift change, or fails at the worst time can turn “better protectio...

Daily Bulletin - avatar Daily Bulletin

Why a Document Destruction Service Still Matters for Modern Businesses

Businesses generate large volumes of information every day, from staff records and contracts to invoices, reports and customer files. While attention often focuses on how documents are stored, the way...

Daily Bulletin - avatar Daily Bulletin

Bicycle Rack Safety and Space-Smart Storage

Bike storage problems usually show up as small annoyances first: tangled handlebars, scratched frames, and bikes that topple when you pull one out. Over time, those issues become safety risks, especia...

Daily Bulletin - avatar Daily Bulletin

How to Tell if a Childcare Centre Is a Good Fit for Your Child

Choosing childcare can feel like you’re making a huge decision with limited information. Tours are short, centres are often on their best behaviour, and your child might act differently in a new space...

Daily Bulletin - avatar Daily Bulletin

Car Import Timeline: What Usually Happens at Each Stage

Importing a car into Australia can feel confusing because multiple agencies and checkpoints are involved, and the timeline is shaped as much by paperwork quality as it is by shipping speed. The most u...

Daily Bulletin - avatar Daily Bulletin

Portable Toilet Hygiene Standards Explained: Clean vs Sanitised vs Disinfected

In portable toilet servicing, the words clean, sanitised, and disinfected often get used as if they mean the same thing. They don’t. And that difference matters because a unit can look tidy and still ...

Daily Bulletin - avatar Daily Bulletin

The Daily Magazine

What Actually Makes a Good Criminal Lawyer in Melbourne

Most people only think about this question once. That is usually too late. Most people charged wi...

Why Working With A Chatswood Tutor Can Improve Academic Performance

Academic expectations continue increasing for students across primary school, high school, and senio...

Is It Worth Getting Solar Panels in Melbourne?

The real question is not whether solar works in Melbourne. It works. The question is what it is co...

How A Diploma Of Project Management Builds Practical Skills For Modern Work Environments

Developing the ability to plan, execute, and deliver outcomes efficiently is a key requirement in to...

How to Choose the Right Football for Every Level

Choosing a football may seem straightforward, but the right option depends on who will be using it a...

What to Ask a Wedding Photographer Before You Book

Booking a wedding photographer can feel deceptively simple: you like the photos, you like the vibe...

Why Stress Relief For Dogs Is Essential For Emotional Balance And Long-Term Wellbeing

Managing emotional health is just as important as physical care when it comes to pets, which is why ...

Australia’s Best Walking Trails and the Shoes You Need to Tackle Them

Australia is not short on spectacular walks. You can follow ocean cliffs in Victoria, cross ancien...

Why Pre-Purchase Building Inspections Are Essential Before Buying a Home in Australia

source Have you ever walked through an open home and started picturing your furniture, family d...