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Chris Merritt
Legal Affairs Contributor
15 April, 2024
Ten’s hollow victory no vindication of ‘shambolic’ trial by media

There is now a real danger society will learn the wrong lessons from Network Ten’s resounding defamation win against Bruce Lehrmann – a man who stands condemned as a rapist.
Mr Lehrmann is the author of his own ruin.
He launched this civil case knowing there was a risk that the lower standard of proof might work to his disadvantage. Nobody forced him to sue. He no longer faced the risk of criminal proceedings, which had been abandoned in the ACT.
But as Justice Michael Lee said in his judgment: “Having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat.” He must now bear the entire responsibility for his own downfall. But Ten’s triumphalism is a bit rich. It carries the risk that other parts of the media might adopt the same dubious methods that were unmasked by the judge.
Let’s be clear about what ­happened.
Yes, Ten and journalist Lisa Wilkinson successfully defended the truth of the assertion that Lehrmann raped Brittany Higgins in the office of former Coalition minister Linda Reynolds. But none of the main parties emerges from this affair wearing a white hat – particularly the nominal victors, Ten and Wilkinson. It is wrong to go beyond the formal outcome of the case and portray this decision as vindication for the brand of journalism practised by Wilkinson and Ten. Justice Lee’s ruling makes it clear they allowed themselves to be used to publicise unsubstantiated claims that the former ­Coalition government engaged in a cover-up of this incident.
That will be welcome news to Senator Reynolds, one of the former ministers who, for a time, had been wrongly maligned and targeted by the then Labor ­opposition. Justice Lee shot down the ­suggestion that Ms Higgins had been the victim of some sort of political conspiracy that had been ­uncovered by Ten and Wilkinson. Even though Ten and Wilkinson “have legally justified their imputation of rape, this does not mean their conduct was justified in any broader or colloquial sense”, his judgment says. He viewed the rape allegation as a minor part of the main theme of political intervention and a cover-up that had been broadcast by Ten’s program, The Project. And that main theme, according to the judge, turned out to be mere supposition.
“The publication of accusations of corrupt conduct in putting up roadblocks and forcing a rape victim to choose between her ­career and justice won The Project team, like (News Corp journalist Samantha) Maiden, a glittering prize; but when the accusation is examined properly, it was supposition without reasonable foundation in verifiable fact,” the judge said.
“Its dissemination caused a brume of confusion, and did much collateral damage – including to the fair and orderly progress of the underlying allegation of sexual assault through the criminal justice system.
“To the extent there were ­perceived systemic issues as to ­avenues of complaint and support services in parliament, this may have merited a form of fact-based critique, not the publication of ­insufficiently scrutinised and ­factually misconceived conjecture.”
The real lesson from this affair is that the media is not equipped to displace the courts and the broader justice system when it comes to dealing with accusations of sexual assault. The justice system has ­undergone extensive reforms that minimise the trauma inflicted by the trial process.
The media has not.
The real danger is that ­vulnerable women might ­misinterpret Ten’s victory as ­vindication for trial by media – a system that contributed to what Justice Lee described as an “omni-shambles”.