News & Current Affairs
28.10.22
Trial by media – anonymity vs infamy in the trial of Bruce Lehrmann
You would have been living under a rock yesterday if you did not see the media frenzy that followed the discharging of the jury in the trial of Bruce Lehrmann for the alleged rape of Brittany Higgins. My colleague Alexis Currier has written about the process of discharging the jury and all things jury here.
On the steps of the Court yesterday, and surrounded by her advisors, including victims’ advocate Heidi Yates, Brittany Higgins expressed her dissatisfaction about the public scrutiny on her throughout this trial.
In the ordinary course of these types of matters, complainants are anonymous. Publication of the complainant’s name or any details which identify them is expressly prohibited[1]. This is to ensure the identity of complainants are kept out of the media and allow them to be as anonymous as they can be so this type of thing does not occur.
In our experience almost all complainants avail themselves of the protection of the law so that their details are kept out of the public eye and their anonymity protected. Not only are they able to keep their names out of the media, they can also give evidence remotely by audio visual means[2], can ask for the media to be excluded from the Court when they are giving evidence or being cross examined[3] and can ask that the courtroom be arranged in such a way that when they are giving evidence they do not have to see the alleged offender[4].
What needs to be said is that Ms Higgins chose not to do that as is her prerogative. Her choice means the media is able to publish her name and her identity is not protected. Ms Higgins was the one who went to the media before she made the complaint to the police. She secured a book deal, repeatedly accepted interviews publicly, appeared on magazine covers and on television programs on high traffic mediums. Her actions alone have meant that her life and this trial has been swept up by the media and been front page national news.
It was her choice to do so.
Instead of availing herself of the protections afforded to victims of sexual crimes, she arrives at Court and with an army of lawyers including a victims advocate and makes sensational statements about the trial on the Court steps, immediately following the Chief Justice strenuously imploring all in the Court not to do so, whilst at the same time complaining that her life has been splashed all over the media. Those comments may run against the accused’s right to have a fair trial which is listed as early as February 2023. People’s memories are not that short.
Her statement seemed to have been pre-prepared and presumably with input from her advisors.
Ms Yates quite notably and obviously stood exceptionally close to Ms Higgins so that she appeared in every camera angle and nodded her head at various stages indicating her approval of the statement.
Ms Yates purports to support the cause of giving a voice to victims, encouraging them to make complaints if something as shocking as sexual violence happens to them.
Leaving aside whether or not Ms Higgins should be held in contempt for some of the things she said following the Chief Justice’s urges not to do what she did (and especially in light of the trial originally being stayed for 6 months following Lisa Wilkinson’s speech at the Logies before it was originally scheduled) what Ms Higgins has now achieved is the exact opposite.
Ms Higgins’ sensational comments and very public statements about what she has gone through during the trial, will no doubt deter others from making a complaint and achieve the complete opposite of what Ms Higgins and Ms Yates purport to want to promote
It leaves open an uncomfortable, but obvious question: Are they truly about the cause they seem to promote or is this self-promotion?
The thing that sets Australia apart from so many other countries including the United States, is the sanctity of the rule of law where innocent people are innocent until found guilty and every person, notwithstanding the type of allegation is entitled to a fair trial. They are entitled to be presumed innocent unless and until the evidence presented fairly to the Court indicates to the Court that there can be a finding of guilt beyond a reasonable doubt.
No single matter, no heinous crime is more important than that aspect of our judicial system. If that is decayed in any way, then the whole things fall down. If Ms Higgins is not capable of making dispassionate and fair comments about the way this matter has unfolded, then those who are presenting her to the media and advising her should have the objectivity and the professionalism to advise her appropriately. It beggars belief that the victims advocate did not have input into her statement or at least knew and understood what she was going to say. An officer of the Court should have taken her responsibilities more seriously. Standing next to her and nodding at every opportunity could only be seen as condoning what happened yesterday.
Any matter, irrespective of the type of allegation where a juror takes it upon themselves to carry out research (which was not admitted into evidence) and bring it to the jury room obviously to somehow persuade 11 others must result in a discharge of the jury. In other jurisdictions that juror would be charged with criminal offences. Her Honour had no choice but to discharge the jury and order a re-trial. The Sheriff who brought the offending material before the Court should be commended.
It is unfortunate for Ms Higgins and the accused and everybody else involved, but Ms Yates as a lawyer must understand that the statement given outside of court by Ms Higgins can only serve to put a further question mark on whether the accused can obtain a fair trial.
Surely an important message that should have been given by the victims’ advocate is that a person, after a fair trial is either found guilty or not guilty and the best advice is to allow the trial to proceed uninhibited. Ms Yates works for the ACT Human Rights Commission. A fundamental human right is the right to a fair trial[5].
There is a very good chance that this trial will be adjourned in February. There’s arguably also an opportunity for a permanent stay, given Ms Higgins’ statements coupled with Ms Wilkinson’s earlier indiscretion, which is surely not a good outcome for the alleged victim. There were a number of other sexual assault victims before the Courts this week including two sex workers. Those two alleged victims chose to keep their identities anonymous; I can’t help but wonder if they got the same level of support.
Surely a better outcome for the victim, if the accused is guilty of the crime alleged, is for the trial to proceed fairly and, if the evidence supports a finding of guilt beyond a reasonable doubt, for him to be found guilty.
It is regrettable that Ms Higgins’ life was publicly scrutinized. It didn’t have to be.
[1] Section 74 Evidence (Miscellaneous) Provisions Act 1991 (ACT)
[2] Ibid. Division 4.3.4 and 4.3.5
[3] Ibid. Section 50
[4] Ibid. section 47
[5] Article 14 International Covenant on Civil and Political Rights – which Australia is a party to https://humanrights.gov.au/our-work/rights-and-freedoms/fair-trial-and-fair-hearing-rights