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After Lisa Wilkinson’s remarks about Brittany Higgins, can Bruce Lehrmann ever receive a fair trial?

Chris Merritt                23 June 2022

Published in the Australian Newspaper

By now, Lisa Wilkinson must understand the truly catastrophic consequences of her ill-advised remarks about Brittany Higgins.

The real risk of a stretch in prison means she has no option but to surrender to Shane Drumgold, the ACT Director of Public Prosecutions, and provide every undertaking he has asked for – no matter how humiliating.

If all Drumgold is after is a promise that she will mend her ways and respect the presumption of innocence, it will amount to one of the greatest exercises of prosecutorial restraint.

This is the culmination of a regrettable period in which, to borrow a phrase from ACT Chief Justice Lucy McCallum, the boundary between allegations and proven facts has been obliterated by those who should know better.

This affair is far from finalised. But when Drumgold sought his undertakings, both sides would have known that formal legal proceedings over Wilkinson’s remarks could have had a very different result.

Those remarks cut across a pending jury trial by implicitly accepting the truth of allegations by Higgins.

Seven years inside – or a fine of $112,000 – is the maximum penalty under the Criminal Code of the ACT for recklessly publishing material that could cause a miscarriage of justice in a legal proceeding.

If that sounds harsh, consider the penalty for publishing material with the intention of causing a miscarriage of justice: ten years in prison or a fine of $160,000.

This helps explain why Wilkinson was well advised to hire Dr Matt Collins QC, one of the nation’s leading media lawyers, soon after he told a television audience on Wednesday there was a “serious possibility” the authorities might consider laying charges over her remarks about Higgins.

Based on what is already on the public record, and the adverse impact of her remarks on the trial of the man accused of raping Higgins, a tougher approach by Drumgold would have presented Collins with the challenge of a lifetime.

This woman’s fate is a second-order issue. The real problem is whether Bruce Lehrmann, the man charged with sexually assaulting Higgins in Parliament House, can ever receive a fair trial.

To ensure that happens, McCallum will need to overcome impediments that have been faced by few others.

She delayed the trial, hoping that the passage of time would ease the prejudicial impact of Wilkinson’s remarks on potential jurors.

Wilkinson, according to the Chief Justice, had “completely obliterated” the boundary between an allegation of rape and a proven fact.

What we are witnessing is not merely the fallout from one journalist’s brain snap. This is what happens when the presumption of innocence is discarded – not just by a handful of journalists, but by politicians who seem to believe this doctrine can be applied selectively.

If Wilkinson is in trouble for making statements that implicitly endorse the truth of the Higgins allegation – and that is what McCallum asserted – what are we to make of the conduct of others in public life?

In particular, what does this say about Scott Morrison’s apology to Higgins for “the terrible things that took place” in Parliament House?

At least the former prime minister tried later to walk this back by saying it was “by no means a reflection on the matters before the court”.

That was back in February, possibly too far back to influence a jury. But it was the same month in which the National Press Club provided a forum for Higgins and gave her a standing ovation. Was that another example of implicitly accepting the truth of her allegation?

If not, why was she there sharing a platform with Grace Tame, whose accusations of sexual assault have been tested and upheld in a court of law?

McCallum made the point on Tuesday there had been a “seamless elision” of the stories of the two women. They were not in the same category, the Chief Justice said.

Nobody should ever forget that former attorney-general Christian Porter was hounded from office on the basis of an unprovable accusation, which he denied, of sexual misconduct as a teenager with a woman who is now deceased.

It has subsequently emerged, in a book by Aaron Patrick, that one of those promoting that allegation had a youthful sexual relationship with Porter.

McCallum is duty-bound to ensure that Lehrmann receives a fair trial. But the government of the ACT has limited her options.

In May last year, before Lehrmann was committed for trial, this column warned that the intense publicity that had been given to the Higgins allegation made it essential for this case to be tried without a jury.

It is now too late to change the law to give McCallum the option of running this trial without a jury, which has long been a fallback in NSW.

Even now, a spokesman for ACT Attorney-General Shane Rattenbury says the territory is not considering judge-alone trials at this stage.

“But we will see if there are any particular lessons to learn from this high-profile case,” the spokesman says.

For Wilkinson, it looks like the worst she will face will be another grovel – which will be the third she has been required to make this month.

She has already apologised for making light of the war in Ukraine and for accusing former MP Andrew Laming of taking an inappropriate photograph of a woman.

For Lehrmann, justice now depends on jurors having poor memories.