Lawyers for the man accused of raping Brittany Higgins have asked to delay his trial citing “extraordinary” comments by Lisa Wilkinson endorsing Higgins’ credibility that they claim are “clearly a contempt of court”.
At an urgent ACT supreme court hearing on Tuesday, the chief justice, Lucy McCallum, warned that Wilkinson’s Logies speech and a later radio interview appeared to “obliterate the distinction between an allegation and finding of guilt”.
McCallum will decide at 2pm whether to delay the trial to allow the controversy to die down and improve Bruce Lehrmann’s prospects of receiving a fair trial. Lehrmann denies any form of sexual activity took place in early 2019 and is pleading not guilty. The trial is due to start on Monday.
In April, Lehrmann’s lawyers unsuccessfully applied to delay or stop the trial, because chief justice Lucy McCallum was satisfied any potential prejudice to Lehrmann could be prevented by appropriate directions to the jury.
McCallum refused a bid for suppression orders to prevent further publications about the case – a decision she rued at Tuesday’s hearing as based on a “misplaced” trust in the press and the law of contempt to prevent further prejudice.
On Sunday Wilkinson won the Logie for most outstanding news coverage or public affairs report for her work on the Higgins story.
McCallum told the hearing that what concerned her about Wilkinson’s Logies speech and an interview with Jonesy & Amanda on radio on Monday morning was that the “distinction between an allegation and finding of guilt has been completely obliterated in the discussion”.
“The implicit premise of the speech was to celebrate the truthfulness of the story she [Wilkinson] exposed.
“It’s a crowing of the success of good investigative journalism, that resulted in this important truthful story being told as it should have been.”
McCallum added that reporting of the Higgins story had resulted in the “seamless elision” of the stories of Grace Tame, whose abuser was convicted and served a prison sentence, and Higgins, whose allegation had not yet been tested or proved in a criminal case.
“Ms Higgins is treated as being in the same category. She’s not.
“She may be – it may be just a temporal difference, and she can speak same way as Grace Tame [after a possible conviction]. But at the moment her allegation is not in that category.”
McCallum noted in previous hearings she had issued “stern warnings” to the media about its reporting, but her trust had been “missplaced”. “You were right, and I was wrong.”
The ACT director of public prosecutions, Shane Drumgold, resisted the application, arguing the impact on a fair trial was only “marginal” because Wilkinson’s evidence at trial would largely be corroborated by emails and recordings of her interactions with Higgins.
“The credibility of Lisa Wilkinson’s substantive evidence will not be in dispute,” Drumgold claimed. This prompted a warning from Lehrmann’s barrister Steve Whybrow not to verbal him.
Drumgold said that Wilkinson’s opinion of Higgins’ story “hadn’t changed”, and had been ventilated previously including at the March 2021 March for Justice.
But McCallum suggested Wilkinson’s comments came with “higher endorsement”, because they came after receiving a “glittering award for good journalism”, were made with “greater intensity and more proximate to the trial”.
When Drumgold suggested the award was for journalistic skill, not just the truth of the allegation, McCallum quipped that good journalism should also be judged by its “impact on criminal proceedings” and should be remedied by use “of the magic word – alleged”.
Drumgold said that prosecutors, the defence and court all spoke “with one voice” that media coverage had been “completely undesirable”, but the test for the trial delay is whether jurors were exposed to the comments and whether prejudice could be remedied by directions to the jury.
McCallum queried whether the “safer course” was to delay the trial until controversy “dies down”, suggesting that today’s news “is tomorrow’s fish and chips wrapper” and the potential prejudicial impact would dissipate with time.
“I’m concerned, when I rehearse how I will empanel a jury. What will I say about Lisa Wilkinson? She’s going to be a witness. ‘Put out of your mind that she regards Higgins as the bravest woman she’s ever met.’ Perhaps you can say that.”
Drumgold argued jurors could be instructed “with force” to “put out of your mind everything you think you know about this case”.
“The reporting in this matter is factually, almost without exception, wrong,” Drumgold claimed.
Whybrow accused Wilkinson of comments that were “clearly a contempt of court”, and said that it appeared from a file note provided by the DPP that Wilkinson had been warned on 15 June
He noted that Higgins had endorsed Wilkinson’s comments at the Logies, and both had trended as a topic on Twitter in recent days.