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AAP Image/Regi Varghese

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

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”.

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