Higgins, Wilkinson, Lehrmann: Heroes or Victims?

In years to come, the criminal prosecution of Bruce Lehrmann over ultimately unproven allegations of sexual assault in Parliament House is likely to become a case study for students of law, and may even inform the way in which such cases are dealt.

The case that had it all

The nuances of the case have been unlike other sexual assault proceedings – with issues including an unprecedented media campaign against the defendant, media coaching of a complainant, allegations of contempt of court by media personalities, an apology by the then prime minister to the complainant (which undermined the presumption of innocence and jeopardised the right to a fair trial), juror misconduct which brought a trial to an end, the bolstering of a social movement (#metoo), police compiling a dossier detaling the flaws in the complainant’s version of the events and urging prosecutors not to prosecute the defendant, the chief prosecutor ignoring police and allegedly withholding evidence from the defence, a multi-million dollar ‘compensation’ payment to the complainant by the government, paid interviews and an aborted trial.

Villains and heroes

Mr Lehrmann and Ms Higgins were thrust into the spotlight, regarded as villains or heroes depending on ‘which side you’re on’.

Mr Lehrmann’s career and reputation are in tatters, whilst Ms Higgins became the darling of the #metoo movement in Australia, spoke before hordes of supporters and received millions in ‘compensation’ over her unproven claims.

Australian Federal Police versus Director of Public Prosecution

Aside from this, various aspects of the criminal justice process have been placed under the microscope – with police reaching the conclusion that the complainant’s version of the events was inconsistent and untrue following their investigations, but the Director of Public Prosecutions being steadfast on prosecuting Mr Lehrmann regardless.

The complainant was, of course, crucified on the witness stand – something which the media has largely ignored – and despite everything against the defendant, the jurors were not able to reach a verdict before one of them was found to have blatantly breached the trial judge’s directions by bringing a research paper into the jury deliberation room.

Currently, the relationship between the AFP and the DPP is under significant strain, with the former’s dossier on the implausibilities of the complainant’s version of the events being all but ignored by the latter.

Coaching of complainant

There is now evidence that tabloid journalist Lisa Wilkinson’s team coached and ‘egged on’ the complainant – to ensure they would be able to make the most of the story.

The recently releasedfive-hour pre-interview meeting between Higgins, David Sharaz, Wilkinson, and producer Angus Llewellyn was conducted in the lead up to Wilkinson breaking the story of sexual allegations in Parliament House.

What the footage of the pre-record clearly does show, is the angle Wilkinson was keen to take with her initial story. It’s undeniably one-sided. And the rest of the media seems to have taken its cue from that original television interview – certainly at the start, and many times throughout the past two years, the coverage of the allegations has not been unbiased.

And while interviewers will sometimes prepare interviewees for questioning, there is a clear ethical issue with this happening when it comes to interviewing a complainant in a case which has not even been ventilated before the courts, and where a defendant can face several years in prison as a result of the unfair prejudice that can occur through publishing heavily biased information to millions – people who could ultimately end up on a jury.

Wilkinson, who engaged in what many consider to be contempt of court during her Logie acceptance speech which essentially urged people to believe Ms Higgins, and derailed the upcoming trial, claims that the current criticism of her team coaching the complainant represents a “calculated” and “concerted” media campaign against her and her station.

It is an extraordinarily hypocritical claim given her own conduct, but a claim that is not surprising given that Channel 10 – a television station which regularly destroys the careers and reputations of its targets and often complains that laws against defamation are too protective of the defamed – hired a top defamation barrister and threatened to sue anyone who criticised Wilkinson.

Indeed, the extent and context of the coaching – together with Wilkinson’s speech – raise the question of whether the conduct might amount to an attempt to pervert the course of justice.

Defamation cases still to come

A defamation case, brought by Bruce Lehrmann against Wilkinson and Network 10, is yet to have its day in court and, although Lehrmann settled his case with News Life Media and journalist Samantha Maiden out of court, he recently stated that he has not ruled out initiating defamation proceedings against Brittany Higgins personally.

And with every announcement of possible litigation, the headlines keep coming. This was an ongoing issue in the criminal trial of Bruce Lehrmann, whose legal team expressed concerns about media saturation a number of times and at one point sought to have the trial stayed permanently – that application was denied.

It’s reported that Mr Lehrmann is also suing the ABC for broadcasting a speech by Ms Higgins at the National Press Club in 2022.

His aim? To mitigate the damage done to his reputation.

Higgins’ payment referred to NACC

In another recent development – there are now questions being raised about the compensation payment made to Brittany Higgins, reported to be $3 million.

Former Defence Minister Linda Reynolds – whose office both Higgins and Lehrmann worked in, and is where the alleged a sexual assault took place, has said she will refer the payment to the new National Anti-Corruption Commission when it opens its doors on 1 July 2023.

Reynolds says she has concerns around the speed of the process and the “fairness” of the Labor government’s handling of the case as well as questions about “how this significant sum of public money was determined and allocated”.

But the attorney general, Mark Dreyfus, said the government managed the settlement by the letter of the law, rebuffing Reynolds’s claims she was silenced through the mediation process.

What is the truth?

We may never know the ‘real’ truth of what happened in Parliament House on 23 March, 2019.

On the positive side – reviews into government workplaces have tightened protocols and policies to ensure greater safety. And Higgins probably encouraged a lot of sexual assault victims to come forward, who otherwise might not have done so.

It can only be hoped that the horrific media circus this has case turned into doesn’t make them change their minds.

Hopefully too, the case will have the effect of beginning to settle the veracity of the current social narrative which does, at times, have a collective tendency to immediately assume the accused’s guilt.